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[G.R. No. L-8328. May 18, 1956.

]
MANILA ELECTRIC COMPANY, Petitioner, vs. SOTERO REMOQUILLO, in his
own behalf and as guardian of the minors MANUEL, BENJAMIN, NESTOR,
MILAGROS, CORAZON, CLEMENTE and AURORA, all surnamed MAGNO,
SALUD MAGNO, and the COURT OF APPEALS (Second Division), Respondents.
DECISION
MONTEMAYOR, J.:
On August 22, 1950, Efren Magno went to the 3-story house of Antonio Pealoza, his
stepbrother, located on Rodriguez Lanuza Street, Manila, to repair a media agua said
to be in a leaking condition. The media agua was just below the window of the third
story. Standing on said media agua, Magno received from his son thru that window a
3 X 6 galvanized iron sheet to cover the leaking portion, turned around and in doing
so the lower end of the iron sheet came into contact with the electric wire of the Manila
Electric Company (later referred to as the Company) strung parallel to the edge of the
media agua and 2 1/2 feet from it, causing his death by electrocution. His widow and
children fled suit to recover damages from the company. After hearing, the trial court
rendered judgment in their favor P10,000 as compensatory damages; chan
roblesvirtualawlibraryP784 as actual damages; chan roblesvirtualawlibraryP2,000 as
moral and exemplary damages; chan roblesvirtualawlibraryand P3,000 as attorneys
fees, with costs. On appeal to the Court of Appeals, the latter affirmed the judgment
with slight modification by reducing the attorneys fees from P3,000 to P1,000 with
costs. The electric company has appealed said decision to us.
The findings of fact made by the Court of Appeals which are conclusive are stated in
the
following
portions
of
its
decision
which
we
reproduce
below:chanroblesvirtuallawlibrary
The electric wire in question was an exposed, uninsulated primary wire stretched
between poles on the street and carrying a charge of 3,600 volts. It was installed there
some two years before Pealozas house was constructed. The record shows that
during the construction of said house a similar incident took place, although fortunate]y
with much less tragic consequences. A piece of wood which a carpenter was holding
happened to come in contact with the same wire, producing some sparks. The owner
of the house forthwith complained to Defendant about the danger which the wire
presented, and as a result Defendant moved one end of the wire farther from the
house by means of a brace, but left the other end where it was.
At any rate, as revealed by the ocular inspection of the premises ordered by the trial
court, the distance from the electric wire to the edge of the media agua on which the
deceased was making repairs was only 30 inches or 2 1/2 feet. Regulations of the City
of Manila required that all wires be kept three feet from the building. Appellant
contends that in applying said regulations to the case at bar the reckoning should not
be from the edge of the media agua but from the side of the house and that, thus
measured, the distance was almost 7 feet, or more then the minimum prescribed. This
contention is manifestly groundless, for not only is a media agua an integral part of
the building to which it is attached but to exclude it in measuring the distance would
defeat the purpose of the regulation. Appellant points out, nevertheless, that even
assuming that the distance, within the meaning of the city regulations, should be
measured from the edge of the media agua, the fact that in the case of the house
involved herein such distance was actually less than 3 feet was due to the fault of the
owner of said house, because the city authorities gave him a permit to construct a
media agua only one meter or 39 1/2 inches wide, but instead he built one having a
width of 65 3/4 inches, 17 3/8 inches more than the width permitted by the authorities,

thereby reducing the distance to the electric wire to less than the prescribed minimum
of 3 feet.
It is a fact that the owner of the house exceeded the limit fixed in the permit given to
him by the city authorities for the construction of the media agua, and that if he had
not done so Appellants wire would have been 11 3/8 (inches) more than the required
distance of three feet from the edge of the media agua. It is also a fact, however, that
after the media agua was constructed the owner was given a final permit of
occupancy of the house cralaw .
cralaw The wire was an exposed, high tension wire carrying a load of 3,600 volts.
There was, according to Appellant, no insulation that could have rendered it safe, first,
because there is no insulation material in commercial use for such kind of wire; chan
roblesvirtualawlibraryand secondly, because the only insulation material that may be
effective is still in the experimental stage of development and, anyway, its costs would
be prohibitive
The theory followed by the appellate court in finding for the Plaintiff is that although the
owner of the house in constructing the media agua in question exceeded the limits
fixed in the permit, still, after making that media agua, its construction though illegal,
was finally approved because he was given a final permit to occupy the house; chan
roblesvirtualawlibrarythat it was the company that was at fault and was guilty of
negligence because although the electric wire in question had been installed long
before the construction of the house and in accordance with the ordinance fixing a
minimum of 3 feet, mere compliance with the regulations does not satisfy the
requirement of due diligence nor avoid the need for adopting such other precautionary
measures as may be warranted; chan roblesvirtualawlibrarythat negligence cannot be
determined by a simple matter of inches; chan roblesvirtualawlibrarythat all that the city
did was to prescribe certain minimum conditions and that just because the ordinance
required that primary electric wires should be not less than 3 feet from any house, the
obligation of due diligence is not fulfilled by placing such wires at a distance of 3 feet
and one inch, regardless of other factors. The appellate court, however, refrained from
stating or suggesting what other precautionary measures could and should have been
adopted.
After a careful study and discussion of the case and the circumstances surrounding the
same, we are inclined to agree to the contention of Petitioner Company that the death
of Magno was primarily caused by his own negligence and in some measure by the too
close proximity of the media agua or rather its edge to the electric wire of the
company by reason of the violation of the original permit given by the city and the
subsequent approval of said illegal construction of the media agua. We fail to see
how the Company could be held guilty of negligence or as lacking in due diligence.
Although the city ordinance called for a distance of 3 feet of its wires from any building,
there was actually a distance of 7 feet and 2 3/4 inches of the wires from the side of
the house of Pealoza. Even considering said regulation distance of 3 feet as referring
not to the side of a building, but to any projecting part thereof, such as a media agua,
had the house owner followed the terms of the permit given him by the city for the
construction of his media agua, namely, one meter or 39 3/8 inches wide, the
distance from the wires to the edge of said media agua would have been 3 feet and
11 3/8 inches. In fixing said one meter width for the media agua the city authorities
must have wanted to preserve the distance of at least 3 feet between the wires and
any portion of a building. Unfortunately, however, the house owner disregarding the
permit, exceeded the one meter fixed by the same by 17 3/8 inches and leaving only a
distance of 2 1/2 feet between the Media agua as illegally constructed and the
electric wires. And added to this violation of the permit by the house owner, was its
approval by the city through its agent, possibly an inspector. Surely we cannot lay

these serious violations of a city ordinance and permit at the door of the Company,
guiltless of breach of any ordinance or regulation. The Company cannot be expected to
be always on the lookout for any illegal construction which reduces the distance
between its wires and said construction, and after finding that said distance of 3 feet
had been reduced, to change the stringing or installation of its wires so as to preserve
said distance. It would be much easier for the City, or rather it is its duty, to be ever on
the alert and to see to it that its ordinances are strictly followed by house owners and to
condemn or disapprove all illegal constructions. Of course, in the present case, the
violation of the permit for the construction of the media agua was not the direct cause
of the accident. It merely contributed to it. Had said media agua been only one meter
wide as allowed by the permit, Magno standing on it, would instinctively have stayed
closer to or hugged the side of the house in order to keep a safe margin between the
edge of the media agua and the yawning 2-story distance or height from the ground,
and possibly if not probably avoided the fatal contact between the lower end of the iron
sheet and the wires.
We realize that the presence of the wires in question quite close to the house or its
media agua was always a source of danger considering their high voltage and
uninsulated as they were, but the claim of the company and the reasons given by it for
not insulating said wires were unrefuted as we gather from the findings of the Court of
Appeals, and so we have to accept them as satisfactory. Consequently, we may not
hold said company as guilty of negligence or wanting in due diligence in failing to
insulate said wires. As to their proximity to the house it is to be supposed that distance
of 3 feet was considered sufficiently safe by the technical men of the city such as its
electrician or engineer. Of course, a greater distance of say 6 feet or 12 feet would
have increased the margin of safety but other factors had to be considered such as
that the wires could not be strung or the posts supporting them could not be located
too far toward the middle of the street. Thus, the real cause of the accident or death
was the reckless or negligent act of Magno himself. When he was called by his
stepbrother to repair the media agua just below the third story window, it is to be
presumed that due to his age and experience he was qualified to do so. Perhaps he
was a tinsmith or carpenter and had training and experience for the job. So, he could
not have been entirely a stranger to electric wires and the danger lurking in them. But
unfortunately, in the instant care, his training and experience failed him, and forgetting
where he was standing, holding the 6-feet iron sheet with both hands and at arms
length, evidently without looking, and throwing all prudence and discretion to the winds,
he turned around swinging his arms with the motion of his body, thereby causing his
own electrocution.
In support of its theory and holding that Defendant-Appellant was liable for damages
the Court of Appeals cites the case of Astudillo vs. Manila Electric Co., 55 Phil., 427.
We do not think the case is exactly applicable. There, the premises involved was that
elevated portion or top of the walls of Intramuros, Manila, just above the Sta. Lucia
Gate. In the words of the Court, it was a public place where persons come to stroll, to
rest and to enjoy themselves. The electric company was clearly negligent in placing its
wires so near the place that without much difficulty or exertion, a person by stretching
his hand out could touch them. A boy named Astudillo, placing one foot on a
projection, reached out and actually grasped the electric wire and was electrocuted.
The person electrocuted in said case was a boy who was in no position to realize the
danger. In the present case, however, the wires were well high over the street where
there was no possible danger to pedestrians. The only possible danger was to persons
standing on the media agua, but a media agua can hardly be considered a public
place where persons usually gather. Moreover, a person standing on the media agua
could not have reached the wires with his hands alone. It was necessary as was done

by Magno to hold something long enough to reach the wire. Furthermore, Magno was
not a boy or a person immature but the father of a family, supposedly a tinsmith trained
and experienced in the repair of galvanized iron roofs and media agua. Moreover, in
that very case of Astudillo vs. Manila Electric Co., supra, the court said that although it
is a well- established rule that the liability of electric companies for damages or
personal injuries is governed by the rules of negligence, nevertheless such companies
are not insurers of the safety of the public.
But even assuming for a moment that under the facts of the present case the
Defendant electric company could be considered negligent in installing its electric wires
so close to the house and media agua in question, and in failing to properly insulate
those wires (although according to the unrefuted claim of said company it was
impossible to make the insulation of that kind of wire), nevertheless to hold the
Defendant liable in damages for the death of Magno, such supposed negligence of the
company must have been the proximate and principal cause of the accident, because
if the act of Magno in turning around and swinging the galvanized iron sheet with his
hands was the proximate and principal cause of the electrocution, then his heirs may
not recover. Such was the holding of this Court in the case of Taylor vs. Manila Electric
Railroad and Light Company, 16 Phil., 8. In that case, the electric company was found
negligent in leaving scattered on its premises fulminating caps which Taylor, a 15- year
old boy found and carried home. In the course of experimenting with said fulminating
caps, he opened one of them, held it out with his hands while another boy applied a
lighted match to it, causing it to explode and injure one of his eyes eventually causing
blindness in said eye. Said this Tribunal in denying recovery for the
injury:chanroblesvirtuallawlibrary
cralaw, so that while it may be true that these injuries would not have been incurred
but for the negligent act of the Defendant in leaving the caps exposed on its premises,
nevertheless Plaintiffs own act was the proximate and principal cause of the accident
which inflicted the injury.
To us it is clear that the principal and proximate cause of the electrocution was not the
electric wire, evidently a remote cause, but rather the reckless and negligent act of
Magno in turning around and swinging the galvanized iron sheet without taking any
precaution, such as looking back toward the street and at the wire to avoid its
contacting said iron sheet, considering the latters length of 6 feet. For a better
understanding of the rule on remote and proximate cause with respect to injuries, we
find the following citation helpful:chanroblesvirtuallawlibrary
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. pp. 931-332.).
We realize that the stringing of wires of such high voltage (3,600 volts), uninsulated
and so close to houses is a constant source of danger, even death, especially to
persons who having occasion to be near said wires, do not adopt the necessary
precautions. But may be, the City of Manila authorities and the electric company could
get together and devise means of minimizing this danger to the public. Just as the
establishment of pedestrian lanes in city thoroughfares may greatly minimize danger to
pedestrians because drivers of motor vehicles may expect danger and slow down or

even stop and take other necessary precaution upon approaching said lanes, so, a
similar way may possibly be found. Since these high voltage wires cannot be properly
insulated and at reasonable cost, they might perhaps be strung only up to the outskirts
of the city where there are few houses and few pedestrians and there step-down to a
voltage where the wires carrying the same to the city could be properly insulated for
the better protection of the public.
In view of all the foregoing, the appealed decision of the Court of Appeals is hereby
reversed and the complaint filed against the Company is hereby dismissed. No costs.
G.R. No. L-57079 September 29, 1989
PHILIPPINE
LONG
DISTANCE
TELEPHONE
CO.,
INC.,
petitioner,
vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA
ESTEBAN, respondents.
REGALADO, J.:
This case had its inception in an action for damages instituted in the former Court of
First Instance of Negros Occidental 1 by private respondent spouses against petitioner
Philippine Long Distance Telephone Company (PLDT, for brevity) for the injuries they
sustained in the evening of July 30, 1968 when their jeep ran over a mound of earth
and fell into an open trench, an excavation allegedly undertaken by PLDT for the
installation of its underground conduit system. The complaint alleged that respondent
Antonio Esteban failed to notice the open trench which was left uncovered because of
the creeping darkness and the lack of any warning light or signs. As a result of the
accident, respondent Gloria Esteban allegedly sustained injuries on her arms, legs and
face, leaving a permanent scar on her cheek, while the respondent husband suffered
cut lips. In addition, the windshield of the jeep was shattered. 2
PLDT, in its answer, denies liability on the contention that the injuries sustained by
respondent spouses were the result of their own negligence and that the entity which
should be held responsible, if at all, is L.R. Barte and Company (Barte, for short), an
independent contractor which undertook the construction of the manhole and the
conduit system. 3 Accordingly, PLDT filed a third-party complaint against Barte alleging
that, under the terms of their agreement, PLDT should in no manner be answerable for
any accident or injuries arising from the negligence or carelessness of Barte or any of
its employees. 4 In answer thereto, Barte claimed that it was not aware nor was it
notified of the accident involving respondent spouses and that it had complied with the
terms of its contract with PLDT by installing the necessary and appropriate standard
signs in the vicinity of the work site, with barricades at both ends of the excavation and
with red lights at night along the excavated area to warn the traveling public of the
presence of excavations. 5
On October 1, 1974, the trial court rendered a decision in favor of private respondents,
the decretal part of which reads:
IN VIEW OF THE FOREGOING considerations the defendant Philippine Long
Distance Telephone Company is hereby ordered (A) to pay the plaintiff Gloria Esteban
the sum of P20,000.00 as moral damages and P5,000.00 exemplary damages; to
plaintiff Antonio Esteban the sum of P2,000.00 as moral damages and P500.00 as
exemplary damages, with legal rate of interest from the date of the filing of the
complaint until fully paid. The defendant is hereby ordered to pay the plaintiff the sum
of P3,000.00 as attorney's fees.

(B) The third-party defendant is hereby ordered to reimburse whatever amount the
defendant-third party plaintiff has paid to the plaintiff. With costs against the defendant.
6

From this decision both PLDT and private respondents appealed, the latter appealing
only as to the amount of damages. Third-party defendant Barte did not appeal.
On September 25, 1979, the Special Second Division of the Court of Appeals rendered
a decision in said appealed case, with Justice Corazon Juliano Agrava as ponente,
reversing the decision of the lower court and dismissing the complaint of respondent
spouses. It held that respondent Esteban spouses were negligent and consequently
absolved petitioner PLDT from the claim for damages. 7 A copy of this decision was
received by private respondents on October 10, 1979. 8 On October 25, 1979, said
respondents filed a motion for reconsideration dated October 24, 1979. 9 On January
24, 1980, the Special Ninth Division of the Court of Appeals denied said motion for
reconsideration. 10 This resolution was received by respondent spouses on February
22, 1980. 11
On February 29, 1980, respondent Court of Appeals received private respondents'
motion for leave of court to file a second motion for reconsideration, dated February
27, 1980. 12 On March 11, 1980, respondent court, in a resolution likewise penned by
Justice Agrava, allowed respondents to file a second motion for reconsideration, within
ten (10) days from notice thereof. 13 Said resolution was received by private
respondents on April 1, 1980 but prior thereto, private respondents had already filed
their second motion for reconsideration on March 7, 1980. 14
On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said
second motion for reconsideration. 15 The Court of Appeals, in view of the divergent
opinions on the resolution of the second motion for reconsideration, designated two
additional justices to form a division of five. 16 On September 3, 1980, said division of
five promulgated its resolution, penned by Justice Mariano A. Zosa, setting aside the
decision dated September 25, 1979, as well as the resolution dated, January 24,1980,
and affirming in toto the decision of the lower court. 17
On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for
reconsideration of the resolution of September 3, 1980, contending that the second
motion for reconsideration of private respondent spouses was filed out of time and that
the decision of September 25, 1979 penned by Justice Agrava was already final. It
further submitted therein that the relationship of Barte and petitioner PLDT should be
viewed in the light of the contract between them and, under the independent contractor
rule, PLDT is not liable for the acts of an independent contractor. 18 On May 11, 1981,
respondent Court of Appeals promulgated its resolution denying said motion to set
aside and/or for reconsideration and affirming in toto the decision of the lower court
dated October 1, 1974. 19
Coming to this Court on a petition for review on certiorari, petitioner assigns the
following errors:
1. Respondent Court of Appeals erred in not denying private respondents' second
motion for reconsideration on the ground that the decision of the Special Second
Division, dated September 25, 1979, and the resolution of the Special Ninth Division,
dated January 24, 1980, are already final, and on the additional ground that said
second motion for reconsideration is pro forma.
2. Respondent court erred in reversing the aforesaid decision and resolution and in
misapplying the independent contractor rule in holding PLDT liable to respondent
Esteban spouses.
A convenient resume of the relevant proceedings in the respondent court, as shown by
the records and admitted by both parties, may be graphically presented as follows:

(a) September 25, 1979, a decision was rendered by the Court of Appeals with Justice
Agrava as ponente;
(b) October 10, 1979, a copy of said decision was received by private respondents;
(c) October 25, 1979, a motion for reconsideration was filed by private respondents;
(d) January 24, 1980, a resolution was issued denying said motion for reconsideration;
(e) February 22, 1980, a copy of said denial resolution was received by private
respondents;
(f) February 29, 1980, a motion for leave to file a second motion for reconsideration
was filed by private respondents
(g) March 7, 1980, a second motion for reconsideration was filed by private
respondents;
(h) March 11, 1980, a resolution was issued allowing respondents to file a second
motion for reconsideration within ten (10) days from receipt; and
(i) September 3, 1980, a resolution was issued, penned by Justice Zosa, reversing the
original decision dated September 25, 1979 and setting aside the resolution dated
January 24, 1980.
From the foregoing chronology, we are convinced that both the motion for leave to file
a second motion for reconsideration and, consequently, said second motion for
reconsideration itself were filed out of time.
Section 1, Rule 52 of the Rules of Court, which had procedural governance at the time,
provided that a second motion for reconsideration may be presented within fifteen (15)
days from notice of the order or judgment deducting the time in which the first motion
has been pending. 20 Private respondents having filed their first motion for
reconsideration on the last day of the reglementary period of fifteen (15) days within
which to do so, they had only one (1) day from receipt of the order denying said motion
to file, with leave of court, a second motion for reconsideration. 21 In the present case,
after their receipt on February 22, 1980 of the resolution denying their first motion for
reconsideration, private respondents had two remedial options. On February 23, 1980,
the remaining one (1) day of the aforesaid reglementary period, they could have filed a
motion for leave of court to file a second motion for reconsideration, conceivably with a
prayer for the extension of the period within which to do so. On the other hand, they
could have appealed through a petition for review on certiorari to this Court within
fifteen (15) days from February 23, 1980. 22 Instead, they filed a motion for leave to file
a second motion 'for reconsideration on February 29, 1980, and said second motion for
reconsideration on March 7, 1980, both of which motions were by then time-barred.
Consequently, after the expiration on February 24, 1980 of the original fifteen (15) day
period, the running of which was suspended during the pendency of the first motion for
reconsideration, the Court of Appeals could no longer validly take further proceedings
on the merits of the case, much less to alter, modify or reconsider its aforesaid
decision and/or resolution. The filing of the motion for leave to file a second motion for
reconsideration by herein respondents on February 29, 1980 and the subsequent filing
of the motion itself on March 7, 1980, after the expiration of the reglementary period to
file the same, produced no legal effects. Only a motion for re-hearing or
reconsideration filed in time shall stay the final order or judgment sought to be reexamined. 23
The consequential result is that the resolution of respondent court of March 11, 1980
granting private respondents' aforesaid motion for leave and, giving them an extension
of ten (10) days to file a second motion for reconsideration, is null and void. The period
for filing a second motion for reconsideration had already expired when private
respondents sought leave to file the same, and respondent court no longer had the
power to entertain or grant the said motion. The aforesaid extension of ten (10) days
for private respondents to file their second motion for reconsideration was of no legal

consequence since it was given when there was no more period to extend. It is an
elementary rule that an application for extension of time must be filed prior to the
expiration of the period sought to be extended. 24 Necessarily, the discretion of
respondent court to grant said extension for filing a second motion for reconsideration
is conditioned upon the timeliness of the motion seeking the same.
No appeal having been taken seasonably, the respondent court's decision, dated
September 25, 1979, became final and executory on March 9, 1980. The subsequent
resolutions of respondent court, dated March 11, 1980 and September 3, 1980,
allowing private respondents to file a second motion for reconsideration and reversing
the original decision are null and void and cannot disturb the finality of the judgment
nor restore jurisdiction to respondent court. This is but in line with the accepted rule
that once a decision has become final and executory it is removed from the power and
jurisdiction of the court which rendered it to further alter or amend, much less revoke it.
25
The decision rendered anew is null and void. 26 The court's inherent power to correct
its own errors should be exercised before the finality of the decision or order sought to
be corrected, otherwise litigation will be endless and no question could be considered
finally settled. Although the granting or denial of a motion for reconsideration involves
the exercise of discretion, 27 the same should not be exercised whimsically,
capriciously or arbitrarily, but prudently in conformity with law, justice, reason and
equity. 28
Prescinding from the aforesaid procedural lapses into the substantive merits of the
case, we find no error in the findings of the respondent court in its original decision that
the accident which befell private respondents was due to the lack of diligence of
respondent Antonio Esteban and was not imputable to negligent omission on the part
of petitioner PLDT. Such findings were reached after an exhaustive assessment and
evaluation of the evidence on record, as evidenced by the respondent court's
resolution of January 24, 1980 which we quote with approval:
First. Plaintiff's jeep was running along the inside lane of Lacson Street. If it had
remained on that inside lane, it would not have hit the ACCIDENT MOUND.
Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was hit by the
jeep swerving from the left that is, swerving from the inside lane. What caused the
swerving is not disclosed; but, as the cause of the accident, defendant cannot be made
liable for the damages suffered by plaintiffs. The accident was not due to the absence
of warning signs, but to the unexplained abrupt swerving of the jeep from the inside
lane. That may explain plaintiff-husband's insistence that he did not see the
ACCIDENT MOUND for which reason he ran into it.
Second. That plaintiff's jeep was on the inside lane before it swerved to hit the
ACCIDENT MOUND could have been corroborated by a picture showing Lacson
Street to the south of the ACCIDENT MOUND.
It has been stated that the ditches along Lacson Street had already been covered
except the 3 or 4 meters where the ACCIDENT MOUND was located. Exhibit B-1
shows that the ditches on Lacson Street north of the ACCIDENT MOUND had already
been covered, but not in such a way as to allow the outer lane to be freely and
conveniently passable to vehicles. The situation could have been worse to the south of
the ACCIDENT MOUND for which reason no picture of the ACCIDENT MOUND facing
south was taken.
Third. Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-husband
claimed. At that speed, he could have braked the vehicle the moment it struck the
ACCIDENT MOUND. The jeep would not have climbed the ACCIDENT MOUND
several feet as indicated by the tiremarks in Exhibit B. The jeep must have been
running quite fast. If the jeep had been braked at 25 kilometers an hour, plaintiff's

would not have been thrown against the windshield and they would not have suffered
their injuries.
Fourth. If the accident did not happen because the jeep was running quite fast on the
inside lane and for some reason or other it had to swerve suddenly to the right and had
to climb over the ACCIDENT MOUND, then plaintiff-husband had not exercised the
diligence of a good father of a family to avoid the accident. With the drizzle, he should
not have run on dim lights, but should have put on his regular lights which should have
made him see the ACCIDENT MOUND in time. If he was running on the outside lane
at 25 kilometers an hour, even on dim lights, his failure to see the ACCIDENT MOUND
in time to brake the car was negligence on his part. The ACCIDENT MOUND was
relatively big and visible, being 2 to 3 feet high and 1-1/2 feet wide. If he did not see
the ACCIDENT MOUND in time, he would not have seen any warning sign either. He
knew of the existence and location of the ACCIDENT MOUND, having seen it many
previous times. With ordinary precaution, he should have driven his jeep on the night of
the accident so as to avoid hitting the ACCIDENT MOUND. 29
The above findings clearly show that the negligence of respondent Antonio Esteban
was not only contributory to his injuries and those of his wife but goes to the very
cause of the occurrence of the accident, as one of its determining factors, and thereby
precludes their right to recover damages. 30 The perils of the road were known to,
hence appreciated and assumed by, private respondents. By exercising reasonable
care and prudence, respondent Antonio Esteban could have avoided the injurious
consequences of his act, even assuming arguendo that there was some alleged
negligence on the part of petitioner.
The presence of warning signs could not have completely prevented the accident; the
only purpose of said signs was to inform and warn the public of the presence of
excavations on the site. The private respondents already knew of the presence of said
excavations. It was not the lack of knowledge of these excavations which caused the
jeep of respondents to fall into the excavation but the unexplained sudden swerving of
the jeep from the inside lane towards the accident mound. As opined in some quarters,
the omission to perform a duty, such as the placing of warning signs on the site of the
excavation, constitutes the proximate cause only when the doing of the said omitted
act would have prevented the injury. 31 It is basic that private respondents cannot
charge PLDT for their injuries where their own failure to exercise due and reasonable
care was the cause thereof. It is both a societal norm and necessity that one should
exercise a reasonable degree of caution for his own protection. Furthermore,
respondent Antonio Esteban had the last clear chance or opportunity to avoid the
accident, notwithstanding the negligence he imputes to petitioner PLDT. As a resident
of Lacson Street, he passed on that street almost everyday and had knowledge of the
presence and location of the excavations there. It was his negligence that exposed him
and his wife to danger, hence he is solely responsible for the consequences of his
imprudence.
Moreover, we also sustain the findings of respondent Court of Appeals in its original
decision that there was insufficient evidence to prove any negligence on the part of
PLDT. We have for consideration only the self-serving testimony of respondent Antonio
Esteban and the unverified photograph of merely a portion of the scene of the
accident. The absence of a police report of the incident and the non-submission of a
medical report from the hospital where private respondents were allegedly treated
have not even been satisfactorily explained.
As aptly observed by respondent court in its aforecited extended resolution of January
24, 1980
(a) There was no third party eyewitness of the accident. As to how the accident
occurred, the Court can only rely on the testimonial evidence of plaintiffs themselves,

and such evidence should be very carefully evaluated, with defendant, as the party
being charged, being given the benefit of any doubt. Definitely without ascribing the
same motivation to plaintiffs, another person could have deliberately engineered a
similar accident in the hope and expectation that the Court can grant him substantial
moral and exemplary damages from the big corporation that defendant is. The
statement is made only to stress the disadvantageous position of defendant which
would have extreme difficulty in contesting such person's claim. If there were no
witness or record available from the police department of Bacolod, defendant would
not be able to determine for itself which of the conflicting testimonies of plaintiffs is
correct as to the report or non-report of the accident to the police department. 32
A person claiming damages for the negligence of another has the burden of proving
the existence of such fault or negligence causative thereof. The facts constitutive of
negligence must be affirmatively established by competent evidence. 33 Whosoever
relies on negligence for his cause of action has the burden in the first instance of
proving the existence of the same if contested, otherwise his action must fail.
WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 1980
and September 3,1980, are hereby SET ASIDE. Its original decision, promulgated on
September 25,1979, is hereby REINSTATED and AFFIRMED.
SO ORDERED.
G.R. No. L-40452 October 12, 1989
GREGORIO
GENOBIAGON,
petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
Mario D. Ortiz for petitioner.
GRIO-AQUINO, J.:
This is a petition for review of the Court of Appeals' decision in CA-G.R. No. 09949-CR,
dated October 10, 1974, affirming the conviction of the petitioner of the crime of
homicide thru reckless imprudence.
As found by the Court of Appeals, the facts of this case are:
On December 31,1959, at about 7:30 o'clock in the evening, a rig driven by appellant
bumped an old woman who was crossing T. Padilla St., Cebu City, at the right side of
T. Padilla Market. The appellant's rig was following another at a distance of two
meters. The old woman started to cross when the first rig was approaching her, but as
appellant's vehicle was going so fast not only because of the steep down-grade of the
road, but also because he was trying to overtake the rig ahead of him, the appellant's
rig bumped the old woman, who as a consequence, fell at the middle of the road. The
appellant continued to drive on, but a by-stander, one Vicente Mangyao, who just
closed his store in market in order to celebrate the coming of the New Year, and who
saw the incident right before him, shouted at the appellant to stop. He ran after
appellant when the latter refused to stop. Overtaking the appellant, Mangyao asked
him why he bumped the old woman and his answer was, 'it was the old woman that
bumped him.' The appellant went back to the place where the old woman was struck
by his rig. The old woman was unconscious, and the food and viands she was carrying
were scattered on her body. The victim was then loaded in a jeep and brought to the
hospital where she died three hours later (Exh. C). The findings after an autopsy are as
follows:
Contusion with Hematoma Left, Frontal and Occipito-Parietal Regionas Fracture
Occipito-Parietal Bone Cerebral Hemorrhage.

10

The deceased was an eighty-one-year old woman named Rita B. Cabrera. (pp. 31-32,
Rollo.)
Petitioner was charged with homicide thru reckless imprudence in the Court of First
Instance of Cebu (Crim. Case No. V7855). The trial court found petitioner guilty of the
felony charged and sentenced him to "suffer an indeterminate penalty of three (3)
months of arresto mayor as minimum to one (1) year, one (1) month and eleven (11)
days of prision correccional as maximum, to indemnify the heirs of Rita Banzon
Cabrera the sum of P6,000 with subsidiary imprisonment in case of insolvency, not to
exceed 1/3 of the principal penalty and to pay the costs" (p. 3, Appellant's Brief, p. 56,
Rollo).
The petitioner appealed to the Court of Appeals (CA-G.R. 09949-CR)which,on October
10,1974,conviction of the accused but increased his civil liability to P12,000. The
dispositive portion of its decision reads:
WHEREFORE, finding no error in the judgment appealed from except in the amount of
indemnity to be paid to the heirs of the deceased, Rita B. Cabrera, which is the sum of
P6,000.00 with subsidiary imprisonment in case of insolvency which should be raised
to P12,000.00 (People vs. Pantoja, G.R. No. L-18793, October 11, 1968, 25 SCRA
468) but without subsidiary imprisonment in case of insolvency, the same should be,
as it is hereby affirmed in all other respects with costs. (P. 37, Rollo.)
After his motion for reconsideration of the Court of Appeals' decision was denied, he
filed a petition for review in this Court, alleging that the Court of Appeals erred:
1. in not finding that the reckless negligence of the victim was the proximate cause of
the accident which led to her death;
2. in not acquitting the petitioner on the ground of reasonable doubt; and
3. in unjustly increasing the civil liability of the petitioner from P6,000.00 to P12,000.00,
although the circumstances of the victim and the accused (petitioner) do not warrant
such increase.
It is quite evident that all the issues raised in the petition for review are factual. Wellentrenched in our jurisprudence is the rule that findings of fact of the trial court and the
Court of Appeals are binding upon us (Bernardo vs. Bernardo, 101 SCRA 351; Vda.
De Roxas vs. IAC, 143 SCRA 77; Republic vs. IAC, 144 SCRA 705).
The alleged contributory negligence of the victim, if any, does not exonerate the
accused. "The defense of contributory negligence does not apply in criminal cases
committed through reckless imprudence, since one cannot allege the negligence of
another to evade the effects of his own negligence (People vs. Orbeta, CA-G.R. No.
321, March 29,1947)." (People vs. Quinones, 44 O.G. 1520).
The petitioner's contention that the Court of Appeals unjustly increased his civil liability
to P12,000, is devoid of merit. The prevailing jurisprudence in fact provides that
indemnity for death in homicide or murder is P30,000 (People vs. De la Fuente,
[1983]126 SCRA 518; People vs. Centeno, 130 SCRA 198). Accordingly, the civil
liability of the petitioner is increased to P30,000.
WHEREFORE, the appealed decision is affirmed with modification as to the civil
liability of the petitioner which is hereby increased to P30,000. Costs against petitioner.
SO ORDERED.
G.R. No. 1719
January 23, 1907
M.
H.,
RAKES,
plaintiff-appellee,
vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.
A.
D.
Gibbs
for
appellant.
F. G. Waite, & Thimas Kepner for appellee.

11

TRACEY, J.:
This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the
employment of the defendant, was at work transporting iron rails from a barge in the
harbor to the company's yard near the malecon in Manila. Plaintiff claims that but one
hand car was used in this work. The defendant has proved that there were two
immediately following one another, upon which were piled lengthwise seven rails, each
weighing 560 pounds, so that the ends of the rails lay upon two crosspieces or sills
secured to the cars, but without side pieces or guards to prevent them from slipping off.
According to the testimony of the plaintiff, the men were either in the rear of the car or
at its sides. According to that defendant, some of them were also in front, hauling by a
rope. At a certain spot at or near the water's edge the track sagged, the tie broke, the
car either canted or upset, the rails slid off and caught the plaintiff, breaking his leg,
which was afterwards amputated at about the knee.
This first point for the plaintiff to establish was that the accident happened through the
negligence of the defendant. The detailed description by the defendant's witnesses of
the construction and quality of the track proves that if was up to the general stranded of
tramways of that character, the foundation consisting on land of blocks or crosspieces
of wood, by 8 inches thick and from 8 to 10 feet long laid, on the surface of the ground,
upon which at a right angle rested stringers of the same thickness, but from 24 to 30
feet in length. On the across the stringers the parallel with the blocks were the ties to
which the tracks were fastened. After the road reached the water's edge, the blocks or
crosspieces were replaced with pilling, capped by timbers extending from one side to
the other. The tracks were each about 2 feet wide and the two inside rails of the
parallel tracks about 18 inches apart. It was admitted that there were no side pieces or
guards on the car; that where no ends of the rails of the track met each other and also
where the stringers joined, there were no fish plates. the defendant has not effectually
overcome the plaintiff's proof that the joints between the rails were immediately above
the joints between the underlying stringers.
The cause of the sagging of the tracks and the breaking of the tie, which was the
immediate occasion of the accident, is not clear in the evidence, but is found by the
trial court and is admitted in the briefs and in the argument to have been the dislodging
of the crosspiece or piling under the stringer by the water of the bay raised by a recent
typhoon. The superintendent of the company attributed it to the giving way of the block
laid in the sand. No effort was made to repair the injury at the time of the occurrence.
According to plaintiffs witnesses, a depression of the track, varying from one half inch
to one inch and a half, was therafter apparent to the eye, and a fellow workman of the
plaintiff swears that the day before the accident he called the attention of McKenna, the
foreman, to it and asked by simply straightening out the crosspiece, resetting the block
under the stringer and renewing the tie, but otherwise leaving the very same timbers as
before. It has not proven that the company inspected the track after the typhoon or had
any proper system of inspection.
In order to charge the defendant with negligence, it was necessary to show a breach of
duty on its part in failing either to properly secure the load on iron to vehicles
transporting it, or to skillfully build the tramway or to maintain it in proper condition, or
to vigilantly inspect and repair the roadway as soon as the depression in it became
visible. It is upon the failure of the defendant to repair the weakened track, after notice
of its condition, that the judge below based his judgment.
This case presents many important matters for our decision, and first among them is
the standard of duty which we shall establish in our jurisprudence on the part of
employees toward employees.
The lack or the harshness of legal rules on this subject has led many countries to enact
designed to put these relations on a fair basis in the form of compensation or liability

12

laws or the institution of insurance. In the absence of special legislation we find no


difficulty in so applying the general principles of our law as to work out a just result.
Article 1092 of the Civil Code provides:
Civil obligations, arising from crimes or misdemeanors, shall be governed by the
provisions of the Penal Code.
And article 568 of the latter code provides:
He who shall execute through reckless negligence an act that if done with malice
would constitute a grave crime, shall be punished.
And article 590 provides that the following shall be punished:
4. Those who by simple imprudence or negligence, without committing any infraction of
regulations, shall cause an injury which, had malice intervened, would have constituted
a crime or misdemeanor.
And finally by articles 19 and 20, the liability of owners and employers for the faults of
their servants and representatives is declared to be civil and subsidiary in its character.
It is contented by the defendant, as its first defense to the action, that the necessary
conclusion from these collated laws is that the remedy for injuries through negligence
lies only in a criminal action in which the official criminally responsible must be made
primarily liable and his employer held only subsidiarily to him. According to this theory
the plaintiff should have procured the arrest of the representative of the company
accountable for not repairing the tract, and on his prosecution a suitable fine should
have been imposed, payable primarily by him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject. Article
1093 of the Civil Code makes obligations arising from faults or negligence not
punished by the law, subject to the provisions of Chapter 11 of Title XVI. Section 1902
of that chapter reads:
A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.
SEC. 1903. The obligation imposed by the preceding article is demandable, not only
for personal acts and omissions, but also for those of the persons for whom they
should be responsible.
The father, and on his death or incapacity, the mother, is liable for the damages
caused by the minors who live with them.
xxx
xxx
xxx
Owners or directors of an establishment or enterprise are equally liable for the
damages caused by their employees in the service of the branches in which the latter
may be employed or in the performance of their duties.
xxx
xxx
xxx
The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damages.
As an answer to the argument urged in this particular action it may be sufficient to point
out that nowhere in our general statutes is the employer penalized for failure to provide
or maintain safe appliances for his workmen. His obligation therefore is one "not
punished by the law " and falls under civil rather than criminal jurisprudence. But the
answer may be a broader one. We should be reluctant, under any conditions, to adopt
a forced construction of these scientific codes, such as is proposed by the defendant,
that would rob some of these articles of effect, would shut out litigants their will from
the civil courts, would make the assertion of their rights dependent upon the selection
for prosecution of the proper criminal offender, and render recovery doubtful by reason
of the strict rules of proof prevailing in criminal actions. Even if these articles had
always stood alone, such a construction would be unnecessary, but clear light is
thrown upon their meaning by the provisions of the Law of Criminal Procedure of Spain

13

(Ley de Enjuiciamiento Criminal), which, though n ever in actual force in these Islands,
was formerly given a suppletory or explanatory effect. Under article 111 of this law,
both classes of action, civil and criminal, might be prosecuted jointly or separately, but
while the penal action was pending the civil was suspended. According to article 112,
the penal action once started, the civil remedy should be sought therewith, unless it
had been waived by the party injured or been expressly reserved by him for civil
proceedings for the future. If the civil action alone was prosecuted, arising out of a
crime that could be enforced by only on private complaint, the penal action thereunder
should be extinguished. These provisions are in harmony with those of articles 23 and
133 of our Penal Code on the same subject.
An examination of this topic might be carried much further, but the citations of these
articles suffices to show that the civil liability was not intended to be merged in the
criminal nor even to be suspended thereby, except as expressly provided by law.
Where an individual is civilly liable for a negligent act or omission, it is not required that
the inured party should seek out a third person criminally liable whose prosecution
must be a condition precedent to the enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an employer may be regarded
as subsidiary in respect of criminal actions against his employees only while they are
process of prosecution, or in so far as they determinate the existence of the criminal
act from which liability arises, and his obligation under the civil law and its enforcement
in the civil courts is not barred thereby unless by election of the injured person.
Inasmuch as no criminal in question, the provisions of the Penal Code can not affect
this action. This construction renders it unnecessary to finally determine here whether
this subsidiary civil liability in penal actions survived the laws that fully regulated it or
has been abrogated by the American civil and criminal procedure now in force in the
Philippines.
The difficulty in construing the articles of the code above cited in this case appears
from the briefs before us to have arisen from the interpretation of the words of article
1093, "fault or negligence not punished by law," as applied to the comprehensive
definition of offenses in articles 568 and 590 of the Penal Code. It has been shown that
the liability of an employer arising out of his relation to his employee who is the
offender is not to be regarded as derived from negligence punished by the law, within
the meaning of articles 1092 and 1093. More than this, however, it can not be said to
fall within the class of acts unpunished by the law, the consequences of which are
regulated by articles 1902 and 1903 of the Civil Code. The acts to which these articles
are applicable are understood to be those and growing out of preexisting duties of the
parties to one another. But were relations already formed give rise to duties, whether
springing from contract or quasi contract, then breaches of those duties are subject to
articles 1101, 1103, and 1104, of the same code. A typical application of the distinction
may be found in the consequences of a railway accident due to defective machinery
supplied by the employer. His liability to his employee would arise out of the contract of
employment, that to the passengers out of the contract for passage. while that to that
injured bystander would originate in the negligent act itself. This distinction is thus
clearly set forth by Manresa in his commentary on article 1093.
We are with reference to such obligations, that culpa, or negligence, may be
understood in two difference senses; either as culpa, substantive and independent,
which on account of its origin arises in an obligation between two persons not formerly
bound by any other obligation; or as an incident in the performance of an obligation; or
as already existed, which can not be presumed to exist without the other, and which
increases the liability arising from the already exiting obligation.
Of these two species of culpa the first one mentioned, existing by itself, may be also
considered as a real source of an independent obligation, and, as chapter 2, title 16 of

14

this book of the code is devoted to it, it is logical to presume that the reference
contained in article 1093 is limited thereto and that it does not extend to those
provisions relating to the other species of culpa (negligence), the nature of which we
will discuss later. (Vol. 8, p. 29.)
And in his commentary on articles 1102 and 1104 he says that these two species of
negligence may be somewhat inexactly described as contractual and extra-contractual,
the letter being the culpa aquiliana of the Roman law and not entailing so strict an
obligation as the former. This terminology is unreservedly accepted by SanchezRoman (Derecho Civil, fourth section, Chapter XI, Article II, No. 12), and the principle
stated is supported be decisions of the supreme court of Spain, among them those of
November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75
Jurisprudencia Civil, No. 182). The contract is one for hire and not one of mandate.
(March 10, 1897, 81 Jurisprudencia Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of
January 30, 1900, throws uncertain light on the relation between master and workman.
Moved by the quick industrial development of their people, the courts of France early
applied to the subject the principles common to the law of both countries, which are
lucidly discussed by the leading French commentators.
The original French theory, resting the responsibility of owners of industrial enterprises
upon articles 1382, 1383, and 1384 of the Code Napoleon, corresponding in scope to
articles 1902 and 1903 of the Spanish Code, soon yielded to the principle that the true
basis is the contractual obligation of the employer and employee. (See 18 Dalloz, 196,
Title Travail, 331.)
Later the hardships resulting from special exemptions inserted in contracts for
employment led to the discovery of a third basis for liability in an article of he French
Code making the possessor of any object answerable for damage done by it while in
his charge. Our law having no counterpart of this article, applicable to every kind of
object, we need consider neither the theory growing out of it nor that of "professional
risk" more recently imposed by express legislation, but rather adopting the
interpretation of our Civil Code above given, find a rule for this case in the contractual
obligation. This contractual obligation, implied from the relation and perhaps so
inherent in its nature to be invariable by the parties, binds the employer to provide safe
appliances for the use of the employee, thus closely corresponding to English and
American Law. On these principles it was the duty of the defendant to build and to
maintain its track in reasonably sound condition, so as to protect its workingmen from
unnecessary danger. It is plain that in one respect or the other it failed in its duty,
otherwise the accident could not have occurred; consequently the negligence of the
defendant is established.
Another contention of the defense is that the injury resulted to the plaintiff as a risk
incident to his employment and, as such, one assumed by him. It is evident that this
can not be the case if the occurrence was due to the failure to repair the track or to
duly inspect, it for the employee is not presumed to have stipulated that the employer
might neglect his legal duty. Nor may it be excused upon the ground that the
negligence leading to the accident was that of a fellow-servant of the injured man. It is
not apparent to us that the intervention of a third person can relieve the defendant from
the performance of its duty nor impose upon the plaintiff the consequences of an act or
omission not his own. Sua cuique culpa nocet. This doctrine, known as "the fellowservant, rule," we are not disposed to introduce into our jurisprudence. Adopted in
England by Lord Abinger in the case of Prescott vs. Fowler (3 Meeson & Welsby, 1) in
1837, it has since been effectually abrogated by "the Employers' Liability Acts" and the
"Compensation Law." The American States which applied it appear to be gradually
getting rid of it; for instance, the New York State legislature of 1906 did away with it in

15

respect to railroad companies, and had in hand a scheme for its total abolition. It has
never found place in the civil law of continental Europe. (Dalloz, vol. 39, 1858, Title
Responsibilite, 630, and vol. 15, 1895, same title, 804. Also more recent instances in
Fuzier-Herman, Title Responsibilite Civile, 710.)
The French Cour de Cassation clearly laid down the contrary principle in its judgment
of June 28, 1841, in the case of Reygasse, and has since adhered to it.
The most controverted question in the case is that of the negligence of the plaintiff,
contributing to the accident, to what extent it existed in fact and what legal effect is to
be given it. In two particulars is he charged with carelessness:
First. That having noticed the depression in the track he continued his work; and
Second. That he walked on the ends of the ties at the side of the car instead of along
the boards, either before or behind it.
As to the first point, the depression in the track night indicate either a serious or a rival
difficulty. There is nothing in the evidence to show that the plaintiff did or could see the
displaced timber underneath the sleeper. The claim that he must have done so is a
conclusion drawn from what is assumed to have been a probable condition of things
not before us, rather than a fair inference from the testimony. While the method of
construction may have been known to the men who had helped build the road, it was
otherwise with the plaintiff who had worked at this job less than two days. A man may
easily walk along a railway without perceiving a displacement of the underlying
timbers. The foreman testified that he knew the state of the track on the day of the
accident and that it was then in good condition, and one Danridge, a witness for the
defendant, working on the same job, swore that he never noticed the depression in the
track and never saw any bad place in it. The sagging of the track this plaintiff did
perceive, but that was reported in his hearing to the foreman who neither promised nor
refused to repair it. His lack of caution in continuing at his work after noticing the slight
depression of the rail was not of so gross a nature as to constitute negligence, barring
his recovery under the severe American rule. On this point we accept the conclusion of
the trial judge who found as facts that "the plaintiff did not know the cause of the one
rail being lower than then other" and "it does not appear in this case that the plaintiff
knew before the accident occurred that the stringers and rails joined in the same
place."
Were we not disposed to agree with these findings they would, nevertheless, be
binding upon us, because not "plainly and manifestly against the weight of evidence,"
as those words of section 497, paragraph 3 of the Code of Civil Procedure were
interpreted by the Supreme Court of the United States in the De la Rama case (201 U.
S., 303).
In respect of the second charge of negligence against the plaintiff, the judgment below
is not so specific. While the judge remarks that the evidence does not justify the finding
that the car was pulled by means of a rope attached to the front end or to the rails upon
it, and further that the circumstances in evidence make it clear that the persons
necessary to operate the car could not walk upon the plank between the rails and that,
therefore, it was necessary for the employees moving it to get hold upon it as best they
could, there is no specific finding upon the instruction given by the defendant to its
employees to walk only upon the planks, nor upon the necessity of the plaintiff putting
himself upon the ties at the side in order to get hold upon the car. Therefore the
findings of the judge below leave the conduct of the plaintiff in walking along the side of
the loaded car, upon the open ties, over the depressed track, free to our inquiry.
While the plaintiff and his witnesses swear that not only were they not forbidden to
proceed in this way, but were expressly directed by the foreman to do so, both the
officers of the company and three of the workmen testify that there was a general
prohibition frequently made known to all the gang against walking by the side of the

16

car, and the foreman swears that he repeated the prohibition before the starting of this
particular load. On this contradiction of proof we think that the preponderance is in
favor of the defendant's contention to the extent of the general order being made
known to the workmen. If so, the disobedience of the plaintiff in placing himself in
danger contributed in some degree to the injury as a proximate, although not as its
primary cause. This conclusion presents sharply the question, What effect is to be
given such an act of contributory negligence? Does it defeat a recovery, according to
the American rule, or is it to be taken only in reduction of damages?
While a few of the American States have adopted to a greater or less extent the
doctrine of comparative negligence, allowing a recovery by a plaintiff whose own act
contributed to his injury, provided his negligence was slight as compared with that of
the defendant, and some others have accepted the theory of proportional damages,
reducing the award to a plaintiff in proportion to his responsibility for the accident, yet
the overwhelming weight of adjudication establishes the principle in American
jurisprudence that any negligence, however slight, on the part of the person injured
which is one of the causes proximately contributing to his injury, bars his recovery.
(English and American Encyclopedia of law, Titles "Comparative Negligence" and
Contributory Negligence.")
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme
Court of the United States thus authoritatively states the present rule of law:
Although the defendant's' negligence may have been the primary cause of the injury
complained of, yet an action for such injury can not be maintained if the proximate and
immediate cause of the injury can be traced to the want of ordinary care and caution in
the person injured; subject to this qualification, which has grown up in recent years
(having been first enunciated in Davies vs. Mann, 10 M. & W., 546) that the
contributory negligence of the party injured will not defeat the action if it be shown that
the defendant might, by the exercise of reasonable care and prudence, have avoided
the consequences of the injured party's negligence.
There are may cases in the supreme court of Spain in which the defendant was
exonerated, but when analyzed they prove to have been decided either upon the point
that he was not negligent or that the negligence of the plaintiff was the immediate
cause of the casualty or that the accident was due to casus fortuitus. Of the first class
in the decision of January 26, 1887 (38 Jurisprudencia Criminal, No. 70), in which a
railway employee, standing on a car, was thrown therefrom and killed by the shock
following the backing up of the engine. It was held that the management of the train
and engine being in conformity with proper rules of the company, showed no fault on
its part.
Of the second class are the decision of the 15th of January, the 19th of February, and
the 7th of March, 1902, stated in Alcubilla's Index of that year; and of the third class the
decision of the 4th of June, 1888 (64 Jurisprudencia Civil, No. 1), in which the breaking
down of plaintiff's dam by the logs of the defendant impelled against it by the Tajo
River, was held due to a freshet as a fortuitous cause.
The decision of the 7th of March, 1902, on which stress has been laid, rested on two
bases, one, that the defendant was not negligent, because expressly relieved by royal
order from the common obligation imposed by the police law of maintaining a guard at
the road crossing; the other, because the act of the deceased in driving over level
ground with unobstructed view in front of a train running at speed, with the engine
whistle blowing was the determining cause of the accident. It is plain that the train was
doing nothing but what it had a right to do and that the only fault lay with the injured
man. His negligence was not contributory, it was sole, and was of such an efficient
nature that without it no catastrophe could have happened.

17

On the other hand, there are many cases reported in which it seems plain that the
plaintiff sustaining damages was not free from contributory negligence; for instance,
the decision of the 14th of December, 1894 (76 Jurisprudencia Civil, No. 134), in which
the owner of a building was held liable for not furnishing protection to workmen
engaged in hanging out flags, when the latter must have perceived beforehand the
danger attending the work.
None of those cases define the effect to be given the negligence of a plaintiff which
contributed to his injury as one of its causes, though not the principal one, and we are
left to seek the theory of the civil law in the practice of other countries.
In France in the case of Marquant, August 20, 1879, the cour de cassation held that
the carelessness of the victim did not civilly relieve the person without whose fault the
accident could not have happened, but that the contributory negligence of the injured
man had the effect only of reducing the damages. The same principle was applied in
the case of Recullet, November 10, 1888. and that of Laugier of the 11th of November,
1896. (Fuzier-Herman, Title Responsibilite Cirile, 411, 412.) Of like tenor are citations
in Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol. 15, 1895, Title Responsibilite,
193, 198).
In the Canadian Province of Quebee, which has retained for the most part the French
Civil Law, now embodied in a code following the Code Napoleon, a practice in accord
with that of France is laid down in many cases collected in the annotations to article
1053 of the code edited by Beauchamps, 1904. One of these is Luttrell vs. Trottier,
reported in La Revue de Jurisprudence, volume 6, page 90, in which the court of Kings
bench, otherwise known as the court of appeals, the highest authority in the Dominion
of Canada on points of French law, held that contributory negligence did not exonerate
the defendants whose fault had been the immediate cause of the accident, but entitled
him to a reduction of damages. Other similar cases in the provincial courts have been
overruled by appellate tribunals made up of common law judges drawn from other
provinces, who have preferred to impose uniformally throughout the Dominion the
English theory of contributory negligence. Such decisions throw no light upon the
doctrines of the civil law. Elsewhere we find this practice embodied in legislation; for
instance, section 2 of article 2398 of the Code of Portugal reads as follows:
If in the case of damage there was fault or negligence on the part of the person injured
or in the part of some one else, the indemnification shall be reduced in the first case,
and in the second case it shall be appropriated in proportion to such fault or negligence
as provided in paragraphs 1 and 2 of section 2372.
And in article 1304 of the Austrian Code provides that the victim who is partly
changeable with the accident shall stand his damages in proportion to his fault, but
when that proportion is incapable of ascertainment, he shall share the liability equally
with the person principally responsible. The principle of proportional damages appears
to be also adopted in article 51 of the Swiss Code. Even in the United States in
admirality jurisdictions, whose principles are derived from the civil law, common fault in
cases of collision have been disposed of not on the ground of contradictor negligence,
but on that of equal loss, the fault of the one part being offset against that of the other.
(Ralli vs. Troop, 157 U. S. 386; 97.)
The damage of both being added together and the sum equally divided, a decree is
entered in favor of the vessel sustaining the greater loss against the other for the
excess of her damages over one-half of the aggregate sum. (The Manitoba, 122 U. S.,
97)
Exceptional practice appears to prevail in maritime law in other jurisdictions. The
Spanish Code of Commerce, article 827, makes each vessel for its own damage when
both are the fault; this provision restricted to a single class of the maritime accidents,
falls for short of a recognition of the principle of contributory negligence as understood

18

in American Law, with which, indeed, it has little in common. This is a plain from other
articles of the same code; for instance, article 829, referring to articles 826, 827, and
828, which provides: "In the cases above mentioned the civil action of the owner
against the person liable for the damage is reserved, as well as the criminal liability
which may appear."
The rule of the common law, a hard and fast one, not adjustable with respects of the
faults of the parties, appears to have grown out the original method of trial by jury,
which rendered difficult a nice balancing of responsibilities and which demanded an
inflexible standard as a safeguard against too ready symphaty for the injured. It was
assumed that an exact measure of several concurring faults was unattainable.
The reason why, in cases of mutual concurring negligence, neither party can maintain
an action against the other, is, not the wrong of the one is set off against the wrong of
the other; it that the law can not measure how much of the damage suffered is
attributable to the plaintiff's own fault. If he were allowed to recover, it might be that he
would obtain from the other party compensation for hiss own misconduct. (Heil vs.
Glanding, 42 Penn. St. Rep., 493, 499.)
The parties being mutually in fault, there can be no appointment of damages. The law
has no scales to determine in such cases whose wrongdoing weighed most in the
compound that occasioned the mischief. (Railroad vs. Norton, 24 Penn. St. 565, 469.)
Experience with jury trials in negligence cases has brought American courts to review
to relax the vigor of the rule by freely exercising the power of setting aside verdicts
deemed excessive, through the device of granting new trials, unless reduced damages
are stipulated for, amounting to a partial revision of damages by the courts. It appears
to us that the control by the court of the subject matter may be secured on a moral
logical basis and its judgment adjusted with greater nicety to the merits of the litigants
through the practice of offsetting their respective responsibilities. In the civil law system
the desirable end is not deemed beyond the capacity of its tribunals.
Whatever may prove to be the doctrine finally adopted in Spain or in other countries
under the stress and counter stress of novel schemers of legislation, we find the theory
of damages laid down in the judgment the most consistent with the history and the
principals of our law in these Islands and with its logical development.
Difficulty seems to be apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident. The test is simple. Distinction must be
between the accident and the injury, between the event itself, without which there
could have been no accident, and those acts of the victim not entering into it,
independent of it, but contributing under review was the displacement of the crosspiece
or the failure to replace it. this produced the event giving occasion for damages that
is, the shinking of the track and the sliding of the iron rails. To this event, the act of the
plaintiff in walking by the side of the car did not contribute, although it was an element
of the damage which came to himself. Had the crosspiece been out of place wholly or
partly thorough his act of omission of duty, the last would have been one of the
determining causes of the event or accident, for which he would have been
responsible. Where he contributes to the principal occurrence, as one of its
determining factors, he can not recover. Where, in conjunction with the occurrence, he
contributes only to his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.
Accepting, though with some hesitation, the judgment of the trial court, fixing the
damage incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United
States money, we deduct therefrom 2,500 pesos, the amount fairly attributable to his
negligence, and direct judgment to be entered in favor of the plaintiff for the resulting

19

sum of 2,500 pesos, with cost of both instances, and ten days hereafter let the case be
remanded to the court below for proper action. So ordered.
G.R. No. L-87584 June 16, 1992
GOTESCO
INVESTMENT
CORPORATION,
vs.
GLORIA E. CHATTO and LINA DELZA CHATTO, respondents.

petitioner,

DAVIDE. JR., J.:


Assailed in this petition for review under Rule 45 of the Rules of Court are both the
Decision 1 promulgated on 27 July 1988 and the Resolution dated 14 March 1989 2 of
the respondent Court of Appeals in CA-G.R. CV No. 09699 which, respectively
affirmed in toto the decision of Branch XXI of the Regional Trial Court of Cebu in Civil
Case No. R-22567 entitled "Gloria Chatto, et al. versus Gotesco Investment
Corporation", and denied petitioner's motion to reconsider the same.
The trial court ordered the defendant, herein petitioners to pay the plaintiff Lina Delza
E. Chatto the sum of P10,000.00 as moral damages and the plaintiff Gloria E. Chatto
the sum of P49,050.00 as actual and consequential damages, P75,000.00 as moral
damages and P20,000.00 as attorney's fees, plus the cost of the suit. These awards,
except for the attorney's fees, were to earn interest at the rate of twelve per cent (12%)
per annum beginning from the date the complaint was filed, 16 November 1982, until
the amounts were fully paid.
The antecedent facts, as found by the trial court and affirmed by the respondent Court,
are summarized by the latter in the challenged decision as follows:
The evidence shows that in the afternoon of June 4, 1982 plaintiff Gloria E. Chatto, and
her 15-year old daughter, plaintiff Lina Delza E. Chatto went to see the movie "Mother
Dear" at Superama I theater, owned by defendant Gotesco Investment Corporation.
They bought balcony tickets but even then were unable to find seats considering the
number of people patronizing the movie. Hardly ten (10) minutes after entering the
theater, the ceiling of its balcony collapsed. The theater was plunged into darkness and
pandemonium ensued. Shocked and hurt, plaintiffs managed to crawl under the fallen
ceiling. As soon as they were able to get out to the street they walked the nearby FEU
Hospital where they were confined and treated for one (1) day.
The next day, they transferred to the UST hospital. Plaintiff Gloria Chatto was treated
in said hospital from June 5 to June 19 and plaintiff Lina Delza Chatto from June 5 to
11. Per Medico Legal Certificate (Exh, "C") issued by Dr. Ernesto G. Brion, plaintiff Lina
Delza Chatto suffered the following injuries:
Physical injuries:
Contusions:
forehead and drental region, scalp left with hematoma; chest anterior upper bilateral;
back right, scapular region; back, mid-portion, thoraco-lumbar regions, bilateral
Abrasions:
back lumbar region, horizontal, across midline, from left to right; hand right, palm, near
wrist; hand left, index finger, dorsum, proximal phalanx.
Conclusion, cerebral.
X-Ray

Skull;
Thoraco-lumbar
region All negative.
CONCLUSIONS
1. Physical injuries rioted on the subject.

20

2. That under normal condition in the absence of complication, said physical injuries
will require medical attendance and/or incapacitate the subject for a period of from two
to four weeks.
On the other hand, the findings on plaintiff Gloria Chatto per Medico Legal Certificate
(Exh. "D") of Dr. Brion are as follows:
xxx xxx xxx
Physical injuries:
Lacerated wounds:
scalp vertex, running across suggittal line, from left to right, 3.0 cm sutured;
Contusion, forearm right, anterior aspect, upper third.
Abrasions:
Shoulder and upper third, arm right, posterior aspect, linear; backright, scapular region,
two in number, linear; elbow right, posterior aspect; forearm right, anterior aspect,
middle third.
Concusion (sic), cerebral.
X-Ray

Skull

Negative.
Cervical spines Straightening of cervical spine, probably to muscular spasm.
CONCLUSIONS:
1. Physical injuries noted on subject.
2. That under normal condition, in the absence of complication, said physical injuries
will require medical attendance and/or incapacitate the subject for a period of from two
to four weeks.
Due to continuing pain in the neck, headache and dizziness, plaintiff went to Illinois,
USA in July 1982 for further treatment (Exh "E"). She was treated at the Cook County
Hospital in Chicago, Illinois. She stayed in the U.S. for about three (3) months during
which time she had to return to the Cook County Hospital five (5) or, six (6) times.
Defendant tried to avoid liability by alleging that the collapse of the ceiling of its theater
was done due to force majeure. It maintained that its theater did not suffer from any
structural or construction defect. (Exh. 1, 2, 3, 4, & 5) 3
In justifying its award of actual or compensatory and moral damages and attorney's
fees, the trial court said:
It has been established thru the uncontradicted testimony of Mrs. Chatto that during
the chaos and confusion at the theater she lost a pair of earrings worth P2,500 and the
sum of P1,000.00 in cash contained in her wallet which was lost; and that she incurred
the following expenses: P500.00 as transportation fare from Cebu City to Manila on the
first leg of her trip to the United States; P350.00 for her passport; and P46,978.00 for
her expense relative to her treatment in the United States, including the cost of a
round-trip ticket (P11,798.00) hospital and medical bills and other attendant expenses.
The total is P51,328.00, which is more than the sum of P49,050.00 claimed in the
complaint, hence should be reduced accordingly.
The same testimony has also established that Mrs. Chatto contracted to pay her
counsel the sum of P20,000.00, which this court considers reasonable considering,
among other things, the professional standing of work (sic) involved in the prosecution
of this case. Such award of attorney's fees is proper because the defendant's omission
to provide the plaintiffs proper and adequate safeguard to life and limb which they
deserved as patrons to (sic) its theater had compelled the plaintiffs to hire the services
of a counsel, file this case and prosecute it, thus incurring expenses to protect their
interest.
The plaintiffs are entitled to moral damages, which are the direct and proximate result
of the defendants gross negligence and omission. Such moral damages include the
plaintiffs' physical suffering, mental anguish, fright and serious anxiety. On the part of
Mrs. Chatto, who obviously suffered much more pain, anguish, fright and anxiety than

21

her daughter Lina Delza, such damages are compounded by the presence of
permanent deformities on her body consisting of a 6-inch scar on the head and a 2inch scar on one arm. The court believes that the sum of P75,000.00 for plaintiff Gloria
E. Chatto and the sum of P10,000.00 for plaintiff Lina Delza E. Chatto would be
reasonable. 4
Petitioner submitted before the respondent Court the following assignment of errors:
I. THE LOWER COURT ERRED IN ADMITTING PATENTLY INADMISSIBLE
EVIDENCE PRESENTED BY PLAINTIFF-APPELLEES AND IN GIVING LESS
PROBATIVE VALUE TO PUBLIC DOCUMENTS AND CERTIFICATIONS OF THE
CONDITION OF THE BUILDING, PARTICULARLY THE CERTIFICATE OF
OCCUPANCY ISSUED BY THE CITY ENGINEER'S OFFICE OF MANILA.
II. THE LOWER COURT ERRED IN FINDING THAT "THE CEILING OF THE
BALCONY COLLAPSED DUE TO SOME STRUCTURAL CONSTRUCTION OR
ARCHITECTURAL DEFECT," AND NOT DUE TO AN ACT OF GOD OR FORCE
MAJEURE.
III. THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT WAS
GROSSLY NEGLIGENT IN FAILING "TO CAUSE PROPER AND ADEQUATE
INSPECTION MAINTENANCE AND UPKEEP OF THE BUILDING." 5
In its decision, respondent Court found the appeal to be without merit. As to the first
assigned error, it ruled that the trial court did not err in admitting the exhibits in
question in the light of the ruling in Abrenica vs. Gonda 6 on waiver of objections arising
out of failure to object at the proper time Thus:
Exh. "A", the letter dated June 9, 1982 of Tina Mojica of defendant-appellant to the
Administrator of UST Hospital expressing their willingness to guaranty the payment of
the hospital bills of the plaintiffs-appellees was not objected to in trial court for lack of
authentication. It is too late to raise that objection on appeal.
Exhibits "B", "C", "D", "F" to "F-13" are the hospital records at FEU, UST and Cook
County Hospital. It may be true that the doctors who prepared them were not
presented as witnesses. Nonetheless, the records will show that counsel for
defendant-appellant cross examined plaintiff-appellee Gloria Chatto on the matter
especially the content of Exhibits "F" to F-13", Consequently, defendant-appellant is
estopped from claiming lack of opportunity to verify their textual truth. Moreover, the
record is full of the testimony of plaintiffs-appellees on the injuries they sustained from
the collapse of the ceiling of defendant-appellant's theater. Their existence is crystal
clear.
Exh. "E" is the flight coupon and passenger ticket (Northwest Orient) of plaintiffappellee Gloria Chatto from the Philippines to the U.S. (Manila-Chicago-Manila).
Certainly, this is relevant evidence on whether or not she actually travelled (sic) to the
U.S. for further medical treatment. Defendant-appellant's contention that the best
evidence on the issue is her passport is off the mark. The best evidence rule applies
only if the contents of the writing are directly in issue. In any event, her passport is not
the only evidence on the matter.
Exh. "G" is the summary of plaintiff-appellee Gloria Chatto's expenses in the U.S in her
own handwriting. Defendant-appellant's objection that it is self serving goes to the
weight of the evidence. The truth of Exh. "G" could be and should have been tested by
cross examination. It cannot be denied however that such expenses are within the
personal knowledge of the witness.
Exh. "H" is the surgical neckwear worn by the plaintiff-appellee Gloria Chatto as part of
her treatment in the U.S. Defendant-appellant objects to its admission because it is
self-serving. The objection is without merit in view of the evidence on record that
plaintiff-appellee Gloria Chatto sustained head injuries from the collapse of the ceiling
of defendant-appellant's theater. In fact, counsel for defendant-appellant cross

22

examined the said witness on the medical finding of Cook County Hospital that she
was suffering from neck muscle spasm. (TSN, April 17, 1984, p. 11) The wearing of a
surgical neckwear has proper basis.
Exh. "I" is the photograph of plaintiff-appellee Gloria Chatto in the U.S. showing the use
of her surgical neckwear. Defendant-appellant objects to this exhibit its hearsay
because the photographer was not presented as a witness. The objection is incorrect.
In order that photographs or pictures may be given in evidence, they must be shown to
be a true and faithful representation of the place or objects to which they refer. The
photographs may be verified either by the photographer who took it or by any person
who is acquainted with the object represented and testify (sic) that the photograph
faithfully represents the object. (Moran, Comments in the Rules of Court, Vol. V, 1980
ed., p. 80 citing New York Co vs. Moore, 105 Fed. 725) In the case at bar, Exh. "I" was
identified by plaintiff appellee Gloria Chatto. 7
As to the, other assigned errors, the respondent Court ruled:
The lower court did not also err in its finding that the collapse of the ceiling of the
theater's balcony was due to construction defects and not to force majeure. It was the
burden defendant-appellant to prove that its theater did not suffer from any structural
defect when it was built and that it has been well maintained when the incident
occurred. This is its Special and Affirmative Defense and it is incumbent on defendantappellant to prove it. Considering the collapse of the ceiling of its theater's balcony
barely four (4) years after its construction, it behooved defendant-appellant to conduct
an exhaustive study of the reason for the tragic incident. On this score, the effort of
defendant-appellant borders criminal nonchalance. Its witness Jesus Lim Ong testified:
Atty. Barcelona:
Q By the way, you made mention a while ago that your staff of engineer and architect
used to make round inspection of the building under your construction the of these
buildings is Gotesco Cinema 1 and 2, subject matter of this case, and you also made a
regular round up or inspection of the theater. Is that right?
A Yes, sir.
Q And do you personally inspect these buildings under your construction?
A Yes, whenever I can.
Q In the case of Gotesco Cinema 1 and 2, had you any chance to inspect this
building?
A Yes, sir.
Q Particularly in the months of May and June of 1982?
A Yes, in that (sic) months.
Q Now, you said also that sometime in June 1982 you remember that one of these
theaters.
Atty. Barcelona: continuing
particularly Superama 1 the ceiling had collapsed?
A Yes, sir.
Q Did you conduct an investigation?
A Yes, sir.
Q What was your finding?
A There was really nothing, I cannot explain. I could not give any reason why the
ceiling collapsed.
Q Could it not be due to any defect of the plant?
Atty. Florido:
Already answered, Your Honor, he could not give any reason.
COURT:
Objection sustained.
Atty. Barcelona:

23

Q When that incident happened, did the owner Gotesco Investment Corporation went
(sic) to you to call your attention?
A Yes, sir.
Atty. Florido:
Your Honor, we noticed (sic) series of leading questions, but this time we object.
COURT:
Sustained.
Atty. Barcelona;
Q What did the owner of Gotesco do when the ceiling collapsed, upon knowing that
one of the cinemas you maintained collopsed?
A He asked for a thorough investigation.
Q And as a matter of fact as asked you to investigate?
A Yes, sir.
Q Did you come out with any investigation report.
A There was nothing to report.
Clearly, there was no authoritative investigation conducted by impartial civil and
structural engineers on the cause of the collapse of the theater's ceiling, Jesus Lim
Ong is not an engineer, He is a graduate of architecture from the St. Louie (sic)
University in Baguio City. It does not appear he has passed the government
examination for architects. (TSN, June 14, 1985 p. 4) In fine, the ignorance of Mr. Ong
about the cause of the collapse of the ceiling of their theater cannot be equated, as an
act, of God. To sustain that proposition is to introduce sacrilege in our jurisprudence. 8
Its motion for reconsideration of the decision having been denied by the respondent
Court, petitioner filed this petition assailing therein the challenged decision on the
following grounds:
1. The basis of the award for damages stems from medical reports issued by private
physicians of local hospitals without benefit of cross-examination and more seriously,
xerox copies of medical findings issued by American doctors in the United States
without the production of originals, without the required consular authentication for
foreign documents, and without the opportunity for cross-examination.
2. The damage award in favor of respondents is principally, made depend on such
unreliable, hearsay and incompetent evidence for which an award of more than
P150,000.00 in alleged actual, moral and I "consequential" damages are awarded to
the prejudice of the right of petitioner to due process. . . .
3. Unfortunately, petitioners evidence of due diligence in the care and maintenance of
the building was not seriously considered by the Court of Appeals, considering that
frequent inspections and maintenance precautions had to be observed by hired
engineers of petitioner, which enjoys an unsullied reputation in the business of
exhibiting movies in a chain of movie houses in Metro Manila. 9
After the private respondents filed their Comment as required in the Resolution of 17
May 1989, this Court resolved to give due course to the petition and required the
parties to file their respective Memoranda. Subsequently, private respondents, in a
motion, prayed for leave to adopt their Comment as their Memorandum, which this
Court granted on 6 December 1989. Petitioner filed its Memorandum on 10 January
1990.
The petition presents both factual and legal issues. The first relates to the cause of the
collapse of the ceiling while the latter involves the correctness of the admission of the
exhibits in question.
We find no merit in the petition.
The rule is well-settled that the jurisdiction of this Court in cases brought to it from the
Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its
findings of fact being conclusive, 10 except only where a case is shown as coming

24

under the accepted exception. 11 None of the exceptions which this Court has
painstakingly summarized in several cases 12 has been shown to exist in this petition.
Petitioner's claim that the collapse of the ceiling of the theater's balcony was due to
force majeure is not even founded on facts because its own witness, Mr. Jesus Lim
Ong, admitted that "he could not give any reason why the ceiling collapsed." Having
interposed it as a defense, it had the burden to prove that the collapse was indeed
caused by force majeure. It could not have collapsed without a cause. That Mr. Ong
could not offer any explanation does not imply force majeure. As early as eighty-five
(85) years ago, this Court had the occasion to define force majeure. In Pons y
Compaia vs. La Compaia Maritima 13 this Court held:
An examination of the Spanish and American authorities concerning the meaning of
force majeure shows that the jurisprudence of these two countries practically agree
upon the meaning of this phrase.
Blackstone, in his Commentaries on English Law, defines it as
Inevitable accident or casualty; an accident produced by any physical cause which is
irresistible; such as lightning. tempest, perils of the sea, inundation, or earthquake; the
sudden illness or death of a person. (2 Blackstone's Commentaries, 122; Story in
Bailments, sec. 25.)
Escriche, in his Diccionario de Legislacion y Jurisprudencia, defines fuerza mayor as
follows.
The event which we could neither foresee nor resist; as for example, the lightning
stroke, hail, inundation, hurricane, public enemy, attack by robbers; Vis major est, says
Cayo, ea quae consilio humano neque provideri neque vitari potest. Accident and
mitigating circumstances.
Bouvier defines the same as
Any accident due to natural cause, directly exclusively without human intervention,
such as could not have been prevented by any kind of oversight, pains and care
reasonably to have been expected. (Law Reports, 1 Common Pleas Division, 423; Law
Reports, 10 Exchequer, 255.)
Corkburn, chief justice, in a well considered English case (1 Common Pleas Division,
34, 432), said that were a captain
Uses all the known means to which prudent and experienced captains ordinarily have
recourse, he does all that can be reasonably required of him; and if, under such
circumtances, he is overpowered by storm or other natural agency, he is within the rule
which gives immunity from the effects of such vis major.
The term generally applies, broadly speaking, to natural accidents, such as those
caused by lightning, earthquake, tempests, public enemy ,etc.
Petitioner could have easily discovered the cause of the collapse if indeed it were due
to force majeure. To Our mind, the real reason why Mr. Ong could not explain the
cause or reason is that either he did not actually conduct the investigation or that he is,
as the respondent Court impliedly held, incompetent. He is not an engineer, but an
architect who had not even passed the government's examination. Verily, post-incident
investigation cannot be considered as material to the present proceedings. What is
significant is the finding of the trial court, affirmed by the respondent Court, that the
collapse was due to construction defects. There was no evidence offered to overturn
this finding. The building was constructed barely four (4) years prior to the accident in
question. It was not shown that any of the causes denominates as force majeure
obtained immediately before or at the time of the collapse of the ceiling. Such defects
could have been easily discovered if only petitioner exercised due diligence and care in
keeping and maintaining the premises. But as disclosed by the testimony of Mr. Ong,
there was no adequate inspection of the premises before the date of the accident. His
answers to the leading questions on inspection disclosed neither the exact dates of

25

said. inspection nor the nature and extent of the same. That the structural designs and
plans of the building were duly approved by the City Engineer and the building permits
and certificate of occupancy were issued do not at all prove that there were no defects
in the construction, especially as regards the ceiling, considering that no testimony was
offered to prove that it was ever inspected at all.
It is settled that:
The owner or proprietor of a place of public amusement impliedly warrants that the
premises, appliances and amusement devices are safe for the purpose for which they
are designed, the doctrine being subject to no other exception or qualification than that
he does not contract against unknown defects not discoverable by ordinary or
reasonable means. 14
This implied warranty has given rise to the rule that:
Where a patron of a theater or other place of public amusement is injured, and the
thing that caused the injury is wholly and exclusively under the control and
management of the defendant, and the accident is such as in the ordinary course of
events would not have happened if proper care had been exercised, its occurrence
raises a presumption or permits of an inference of negligence on the part of the
defendant. 15
That presumption or inference was not overcome by the petitioner.
Besides, even assuming for the sake of argument that, as petitioner vigorously insists,
the cause of the collapse was due to force majeure, petitioner would still be liable
because it was guilty of negligence, which the trial court denominated as gross. As
gleaned from Bouvier's definition of and Cockburn's elucidation on force majeure for
one to be exempt from any liability because of it, he must have exercised care, i.e., he
should not have been guilty of negligence.
Turning now to the legal issue posed in this petition, the error lies not in the
disquisitions of the respondent Court, but in the sweeping conclusion of petitioner. We
agree with the respondent Court that petitioner offered no reasonable objection to the
exhibits. More than this, however, We note that the exhibits were admitted not as
independent evidence, but, primarily, as part of the testimony of Mrs. Gloria Chatto.
Neither were the exhibits made the main basis for the award of damages. As to the
latter, including the award for attorney's fees, the testimonial evidence presented is
sufficient to support the same; moreover, petitioner was not deprived of its right to test
the, truth or falsity of private respondents' testimony through cross-examination or
refute their claim by its own evidence. It could not then be successfully argued by
petitioner that the admission of the exhibits violated the hearsay rule. As this Court
sees it, the trial court admitted such merely as independently relevant statements,
which was not objectionable, for:
Where, regardless of the truth or the falsity of a statement, the fact that it has been
made is relevant, the hearsay rule does not apply, but the statement may be shown.
Evidence as to the making of such statement is not secondary but primary, for the
statement itself may constitute a fact; in issue, or be circumstantially relevant as to the
existence of such a fact. 16
Furthermore, and with particular reference to the documents issued in the United
States of America (Exhibits "F", "F-1" to "F-13", inclusive), the main objection thereto
was not that they are hearsay. In its written comment and/or opposition to documentary
exhibits, petitioner objected to their admission on the following grounds only:
. . . for being incompetent evidence considering that the same were not duly
authenticated by the responsible consular and/or embassy officials authorized to
authenticate the said documents. 17
All told, the instant petition is without merit.

26

WHEREFORE, judgment is hereby rendered DENYING the instant petition with costs
against petitioner.
SO ORDERED.
G.R. No. 126389 July 10, 1998
SOUTHEASTERN COLLEGE INC., petitioner,
vs.
COURT OF APPEALS, JUANITA DE JESUS VDA. DE DIMAANO, EMERITA
DIMAANO, REMEDIOS DIMAANO, CONSOLACION DIMAANO and MILAGROS
DIMAANO, respondents.
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 petitioner's 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 petitioner's 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 building was conducted by a team of engineers headed by the city building
official, Engr. Jesus L. Reyna. Pertinent aspects of the latter's 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
building 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 building becomes a big funnellike 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 roofing
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 attorney's 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

27

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' houses "could
have been avoided if the construction of the roof of [petitioner's] building was not
faulty." The dispositive portion of the lower court's 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:
a) P117,116.00, as actual damages, plus litigation expenses;
b) P1,000,000.00 as moral damages;
c) P100,000.00 as attorney's fees;
d) Costs of the instant suit.
The claim for exemplary damages is denied for the reason that the defendants (sic) did
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 SOUTHEASTERN'S FOUR (4)
STOREY SCHOOL BUILDING.
II
THE TRIAL COURT ERRED IN HOLDING THAT "THE CONSTRUCTION OF THE
ROOF OF DEFENDANT'S 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 ATTORNEY'S 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 SOUTHEASTERN'S APPEAL
WHEN THERE IS NO COMPELLING REASON FOR THE ISSUANCE THERETO.
As mentioned earlier, respondent Court of Appeals affirmed with modification the trial
court's disposition by reducing the award of moral damages from P1,000,000.00 to
P200,000.00. Hence, petitioner's resort to this Court, raising for resolution the issues
of:
1. Whether or not the award of actual damages [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, with 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

28

against petitioner when the case was already moot and academic by the sale of the
property to third party.
4. Whether or not the award of attorney's fees when the case was already moot
academic [sic] legally justified.
5. Whether or not petitioner is liable for damage caused to others by typhoon "Saling"
being an act of God.
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 building's 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 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 person's 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 damages 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 building's 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 trail 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

29

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 justify
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
by competent 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
petitioner's 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 through, is not
always reflective of the real cause 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 petitioner's 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 petitioner's
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 president's 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

30

bench. It is a matter of judicial notice that typhoons are common occurrences in this
country. If subject school building's 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 attorney's 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 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.
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.
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.
G.R. No. L-53401 November 6, 1989
THE
ILOCOS
NORTE
ELECTRIC
COMPANY,
petitioner,
vs.
HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE
JUAN YABES, VIRGINIA JUAN CID, GLORIA JUAN CARAG, and PURISIMA
JUAN, respondents.
Herman D. Coloma for petitioner.
Glicerio S. Ferrer for private respondents.
PARAS, J.:
Sought to be reversed in this petition is the Decision * of the respondent Court of
Appeals' First Division, setting aside the judgment of the then Court of First Instance
(CFI) of Ilocos Norte, with the following dispositive portion:
WHEREFORE, the appealed judgment is hereby set aside and another rendered in its
stead whereby defendant is hereby sentenced to pay plaintiffs actual damages of
P30,229.45; compensatory damages of P50,000.00; exemplary damages of

31

P10,000.00; attorney's fees of P3,000.00; plus the costs of suit in both instances. (p.
27 Rollo)
Basically, this case involves a clash of evidence whereby both patties strive for the
recognition of their respective versions of the scenario from which the disputed claims
originate. The respondent Court of Appeals (CA) summarized the evidence of the
parties as follows:
From the evidence of plaintiffs it appears that in the evening of June 28 until the early
morning of June 29, 1967 a strong typhoon by the code name "Gening" buffeted the
province of Ilocos Norte, bringing heavy rains and consequent flooding in its wake.
Between 5:30 and 6:00 A.M. on June 29, 1967, after the typhoon had abated and
when the floodwaters were beginning to recede the deceased Isabel Lao Juan, fondly
called Nana Belen, ventured out of the house of her son-in-law, Antonio Yabes, on No.
19 Guerrero Street, Laoag City, and proceeded northward towards the direction of the
Five Sisters Emporium, of which she was the owner and proprietress, to look after the
merchandise therein that might have been damaged. Wading in waist-deep flood on
Guerrero, the deceased was followed by Aida Bulong, a Salesgirl at the Five Sisters
Grocery, also owned by the deceased, and by Linda Alonzo Estavillo, a ticket seller at
the YJ Cinema, which was partly owned by the deceased. Aida and Linda walked side
by side at a distance of between 5 and 6 meters behind the deceased, Suddenly, the
deceased screamed "Ay" and quickly sank into the water. The two girls attempted to
help, but fear dissuaded them from doing so because on the spot where the deceased
sank they saw an electric wire dangling from a post and moving in snake-like fashion in
the water. Upon their shouts for help, Ernesto dela Cruz came out of the house of
Antonio Yabes. Ernesto tried to go to the deceased, but at four meters away from her
he turned back shouting that the water was grounded. Aida and Linda prodded Ernesto
to seek help from Antonio Yabes at the YJ Cinema building which was four or five
blocks away.
When Antonio Yabes was informed by Ernesto that his mother-in law had been
electrocuted, he acted immediately. With his wife Jane, together with Ernesto and one
Joe Ros, Yabes passed by the City Hall of Laoag to request the police to ask the
people of defendant Ilocos Norte Electric Company or INELCO to cut off the electric
current. Then the party waded to the house on Guerrero Street. The floodwater was
receding and the lights inside the house were out indicating that the electric current
had been cut off in Guerrero. Yabes instructed his boys to fish for the body of the
deceased. The body was recovered about two meters from an electric post.
In another place, at about 4:00 A.M. on that fateful date, June 29, 1967, Engineer
Antonio Juan, Power Plant Engineer of the National Power Corporation at the Laoag
Diesel-Electric Plant, noticed certain fluctuations in their electric meter which indicated
such abnormalities as grounded or short-circuited lines. Between 6:00 and 6:30 A.M.,
he set out of the Laoag NPC Compound on an inspection. On the way, he saw
grounded and disconnected lines. Electric lines were hanging from the posts to the
ground. Since he could not see any INELCO lineman, he decided to go to the INELCO
Office at the Life Theatre on Rizal Street by way of Guerrero. As he turned right at the
intersection of Guerrero and Rizal, he saw an electric wire about 30 meters long strung
across the street "and the other end was seeming to play with the current of the water."
(p. 64, TSN, Oct. 24, 1972) Finding the Office of the INELCO still closed, and seeing
no lineman therein, he returned to the NPC Compound.
At about 8:10 A.M., Engr. Juan went out of the compound again on another inspection
trip. Having learned of the death of Isabel Lao Juan, he passed by the house of the
deceased at the corner of Guerrero and M.H. del Pilar streets to which the body had
been taken. Using the resuscitator which was a standard equipment in his jeep and
employing the skill he acquired from an in service training on resuscitation, he tried to

32

revive the deceased. His efforts proved futile. Rigor mortis was setting in. On the left
palm of the deceased, Engr. Juan noticed a hollow wound. Proceeding to the INELCO
Office, he met two linemen on the way. He told them about the grounded lines of the
INELCO In the afternoon of the same day, he went on a third inspection trip
preparatory to the restoration of power. The dangling wire he saw on Guerrero early in
the morning of June 29, 1967 was no longer there.
Many people came to the house at the corner of Guerrero and M.H. del Pilar after
learning that the deceased had been electrocuted. Among the sympathizers was Dr.
Jovencio Castro, Municipal Health Officer of Sarrat, Ilocos Norte. Upon the request of
the relatives of the deceased, Dr. Castro examined the body at about 8:00 A.M. on
June 29, 1967. The skin was grayish or, in medical parlance, cyanotic, which indicated
death by electrocution. On the left palm, the doctor found an "electrically charged
wound" (Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first degree burn. About the base
of the thumb on the left hand was a burned wound. (Exh. C-2, pp. 102-103, Ibid.) The
certificate of death prepared by Dr. Castro stated the cause of' death as ,'circulatory
shock electrocution" (Exh. I; p. 103, Ibid.).
In defense and exculpation, defendant presented the testimonies of its officers and
employees, namely, Conrado Asis, electric engineer; Loreto Abijero, collectorinspector; Fabico Abijero, lineman; and Julio Agcaoili, president-manager of INELCO
Through the testimonies of these witnesses, defendant sought to prove that on and
even before June 29, 1967 the electric service system of the INELCO in the whole
franchise area, including Area No. 9 which covered the residence of Antonio Yabes at
No. 18 Guerrero Street, did not suffer from any defect that might constitute a hazard to
life and property. The service lines, devices and other INELCO equipment in Area No.
9 had been newly-installed prior to the date in question. As a public service operator
and in line with its business of supplying electric current to the public, defendant had
installed safety devices to prevent and avoid injuries to persons and damage to
property in case of natural calamities such as floods, typhoons, fire and others.
Defendant had 12 linesmen charged with the duty of making a round-the-clock checkup of the areas respectively assigned to them.
Defendant asserts that although a strong typhoon struck the province of Ilocos Norte
on June 29, 1967, putting to streets of Laoag City under water, only a few known
places in Laoag were reported to have suffered damaged electric lines, namely, at the
southern approach of the Marcos Bridge which was washed away and where the
INELCO lines and posts collapsed; in the eastern part near the residence of the late
Governor Simeon Mandac; in the far north near the defendant's power plant at the
corner of Segundo and Castro Streets, Laoag City and at the far northwest side, near
the premises of the Ilocos Norte National High School. Fabico Abijero, testified that in
the early morning before 6 o'clock on June 29, 1967 he passed by the intersection of
Rizal and Guerrero Streets to switch off the street lights in Area No. 9. He did not see
any cut or broken wires in or near the vicinity. What he saw were many people fishing
out the body of Isabel Lao Juan.
A witness in the person of Dr. Antonio Briones was presented by the defense to show
that the deceased could not have died of electrocution Substantially, the testimony of
the doctor is as follows: Without an autopsy on the cadaver of the victim, no doctor, not
even a medicolegal expert, can speculate as to the real cause of death. Cyanosis
could not have been found in the body of the deceased three hours after her death,
because cyanosis which means lack of oxygen circulating in the blood and rendering
the color of the skin purplish, appears only in a live person. The presence of the
elongated burn in the left palm of the deceased (Exhibits C-1 and C-2) is not sufficient
to establish her death by electrocution; since burns caused by electricity are more or
less round in shape and with points of entry and exit. Had the deceased held the lethal

33

wire for a long time, the laceration in her palm would have been bigger and the injury
more massive. (CA Decision, pp. 18-21, Rollo)
An action for damages in the aggregate amount of P250,000 was instituted by the
heirs of the deceased with the aforesaid CFI on June 24, 1968. In its Answer (Vide,
Record on Appeal, p. 55, Rollo), petitioner advanced the theory, as a special defense,
that the deceased could have died simply either by drowning or by electrocution due to
negligence attributable only to herself and not to petitioner. In this regard, it was
pointed out that the deceased, without petitioner's knowledge, caused the installation
of a burglar deterrent by connecting a wire from the main house to the iron gate and
fence of steel matting, thus, charging the latter with electric current whenever the
switch is on. Petitioner then conjectures that the switch to said burglar deterrent must
have been left on, hence, causing the deceased's electrocution when she tried to open
her gate that early morning of June 29, 1967. After due trial, the CFI found the facts in
favor of petitioner and dismissed the complaint but awarded to the latter P25,000 in
moral damages and attorney's fees of P45,000. An appeal was filed with the CA which
issued the controverted decision.
In this petition for review the petitioner assigns the following errors committed by the
respondent CA:
1. The respondent Court of Appeals committed grave abuse of discretion and error in
considering the purely hearsay alleged declarations of Ernesto de la Cruz as part of
the res gestae.
2. The respondent Court of Appeals committed grave abuse of discretion and error in
holding that the strong typhoon "Gening" which struck Laoag City and Ilocos Norte on
June 29, 1967 and the flood and deluge it brought in its wake were not fortuitous
events and did not exonerate petitioner-company from liability for the death of Isabel
Lao Juan.
3. The respondent Court of Appeals gravely abused its discretion and erred in not
applying the legal principle of "assumption of risk" in the present case to bar private
respondents from collecting damages from petitioner company.
4. That the respondent Court of Appeals gravely erred and abused its discretion in
completely reversing the findings of fact of the trial court.
5. The findings of fact of the respondent Court of Appeals are reversible under the
recognized exceptions.
6. The trial court did not err in awarding moral damages and attorney's fees to
defendant corporation, now petitioner company.
7. Assuming arguendo that petitioner company may be held liable from the death of the
late Isabel Lao Juan, the damages granted by respondent Court of Appeals are
improper and exhorbitant. (Petitioners Memorandum, p. 133, Rollo)
Basically, three main issues are apparent: (1) whether or not the deceased died of
electrocution; (2) whether or not petitioner may be held liable for the deceased's death;
and (3) whether or not the respondent CA's substitution of the trial court's factual
findings for its own was proper.
In considering the first issue, it is Our view that the same be resolved in the affirmative.
By a preponderance of evidence, private respondents were able to show that the
deceased died of electrocution, a conclusion which can be primarily derived from the
photographed burnt wounds (Exhibits "C", "C-1", "C-2") on the left palm of the former.
Such wounds undoubtedly point to the fact that the deceased had clutched a live wire
of the petitioner. This was corroborated by the testimony of Dr. Jovencio Castro who
actually examined the body of the deceased a few hours after the death and described
the said burnt wounds as a "first degree burn" (p. 144, TSN, December 11, 1972) and
that they were "electrically charged" (p. 102, TSN, November 28, 1972). Furthermore,
witnesses Linda Alonzo Estavillo and Aida Bulong added that after the deceased

34

screamed "Ay" and sank into the water, they tried to render some help but were
overcome with fear by the sight of an electric wire dangling from an electric post,
moving in the water in a snake-like fashion (supra). The foregoing therefore justifies
the respondent CA in concluding that "(t)he nature of the wounds as described by the
witnesses who saw them can lead to no other conclusion than that they were "burns,"
and there was nothing else in the street where the victim was wading thru which could
cause a burn except the dangling live wire of defendant company" (CA Decision, p. 22,
Rollo).
But in order to escape liability, petitioner ventures into the theory that the deceased
was electrocuted, if such was really the case when she tried to open her steel gate,
which was electrically charged by an electric wire she herself caused to install to serve
as a burglar deterrent. Petitioner suggests that the switch to said burglar alarm was left
on. But this is mere speculation, not backed up with evidence. As required by the
Rules, "each party must prove his own affirmative allegations." (Rule 131, Sec. 1).
Nevertheless, the CA significantly noted that "during the trial, this theory was
abandoned" by the petitioner (CA Decision, p. 23, Rollo).
Furthermore the CA properly applied the principle of res gestae. The CA said:
Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were with the
deceased during that fateful morning of June 29, 1967. This Court has not been
offered any sufficient reason to discredit the testimonies of these two young ladies.
They were one in the affirmation that the deceased, while wading in the waist-deep
flood on Guerrero Street five or six meters ahead of them, suddenly screamed "Ay"
and quickly sank into the water. When they approached the deceased to help, they
were stopped by the sight of an electric wire dangling from a post and moving in
snake-like fashion in the water. Ernesto dela Cruz also tried to approach the deceased,
but he turned back shouting that the water was grounded. These bits of evidence carry
much weight. For the subject of the testimonies was a startling occurrence, and the
declarations may be considered part of the res gestae. (CA Decision, p. 21, Rollo)
For the admission of the res gestae in evidence, the following requisites must be
present: (1) that the principal act, the res gestae, be a startling occurrence; (2) that the
statements were made before the declarant had time to contrive or devise; (3) that the
statements made must concern the occurrence in question and its immediately
attending circumstances (People vs. Ner, 28 SCRA 1151; People vs. Balbas, 122
SCRA 959). We do not find any abuse of discretion on the CA' part in view of the
satisfaction of said requisites in the case at bar.
The statements made relative to the startling occurrence are admitted in evidence
precisely as an exception to the hearsay rule on the grounds of trustworthiness and
necessity. "Trustworthiness" because the statements are made instinctively (Wesley
vs. State, 53 Ala. 182), and "necessity" because such natural and spontaneous
utterances are more convincing than the testimony of the same person on the stand
(Mobile vs. Ascraft 48 Ala. 31). Therefore, the fact that the declarant, Ernesto de la
Cruz, was not presented to testify does not make the testimony of Linda Alonzo
Estavillo and Aida Bulong hearsay since the said declaration is part of the res gestae.
Similarly, We considered part of the res gestae a conversation between two accused
immediately after commission of the crime as overheard by a prosecution witness
(People vs. Reyes, 82 Phil. 563).
While it may be true that, as petitioner argues (vide petitioner's Memorandum, p. 135,
Rollo), Ernesto de la Cruz was not an actual witness to the instant when the deceased
sank into the waist-deep water, he acted upon the call of help of Aida Bulong and
Linda Alonzo Estavillo with the knowledge of, and immediately after, the sinking of the
deceased. In fact the startling event had not yet ceased when Ernesto de la Cruz
entered the scene considering that the victim remained submerged. Under such a

35

circumstance, it is undeniable that a state of mind characterized by nervous excitement


had been triggered in Ernesto de la Cruz's being as anybody under the same
contingency could have experienced. As such, We cannot honestly exclude his shouts
that the water was grounded from the res gestae just because he did not actually see
the sinking of the deceased nor hear her scream "Ay."
Neither can We dismiss the said declaration as a mere opinion of Ernesto de la Cruz.
While We concede to the submission that the statement must be one of facts rather
than opinion, We cannot agree to the proposition that the one made by him was a
mere opinion. On the contrary, his shout was a translation of an actuality as perceived
by him through his sense of touch.
Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was
suppressed by the private respondents, thus, is presumed to be adverse to them
pursuant to Section 5(e), Rule 131. For the application of said Rule as against a party
to a case, it is necessary that the evidence alleged to be suppressed is available only
to said party (People vs. Tulale, L-7233, 18 May 1955, 97 Phil. 953). The presumption
does not operate if the evidence in question is equally available to both parties
(StaplesHowe Printing Co. vs. Bldg. and Loan Assn., 36 Phil. 421). It is clear from the
records that petitioner could have called Ernesto de la Cruz to the witness stand. This,
precisely, was Linda Alonzo Estavillo's suggestion to petitioner's counsel when she
testified on cross examination:
Q. And that Erning de la Cruz, how far did he reach from the gate of the house?
A. Well, you can ask that matter from him sir because he is here. (TSN, p. 30, 26 Sept.
1972)
The foregoing shows that petitioner had the opportunity to verify the declarations of
Ernesto de la Cruz which, if truly adverse to private respondent, would have helped its
case. However, due to reasons known only to petitioner, the opportunity was not taken.
Coming now to the second issue, We tip the scales in the private respondents' favor.
The respondent CA acted correctly in disposing the argument that petitioner be
exonerated from liability since typhoons and floods are fortuitous events. While it is
true that typhoons and floods are considered Acts of God for which no person may be
held responsible, it was not said eventuality which directly caused the victim's death. It
was through the intervention of petitioner's negligence that death took place. We
subscribe to the conclusions of the respondent CA when it found:
On the issue whether or not the defendant incurred liability for the electrocution and
consequent death of the late Isabel Lao Juan, defendant called to the witness-stand its
electrical engineer, chief lineman, and lineman to show exercise of extraordinary
diligence and to negate the charge of negligence. The witnesses testified in a general
way about their duties and the measures which defendant usually adopts to prevent
hazards to life and limb. From these testimonies, the lower court found "that the electric
lines and other equipment of defendant corporation were properly maintained by a
well-trained team of lineman, technicians and engineers working around the clock to
insure that these equipments were in excellent condition at all times." (P. 40, Record
on Appeal) The finding of the lower court, however, was based on what the defendant's
employees were supposed to do, not on what they actually did or failed to do on the
date in question, and not on the occasion of the emergency situation brought about by
the typhoon.
The lower court made a mistake in assuming that defendant's employees worked
around the clock during the occurrence of the typhoon on the night of June 28 and until
the early morning of June 29, 1967, Engr. Antonio Juan of the National Power
Corporation affirmed that when he first set out on an inspection trip between 6:00 and
6:30 A.M. on June 29, 1967, he saw grounded and disconnected electric lines of the
defendant but he saw no INELCO lineman. The INELCO Office at the Life theatre on

36

Rizal Street was still closed. (pp. 63-64, TSN, Oct. 24, 1972) Even the witnesses of
defendant contradict the finding of the lower court. Conrado Asis, defendant's electrical
engineer, testified that he conducted a general inspection of the franchise area of the
INELCO only on June 30, 1967, the day following the typhoon. The reason he gave for
the delay was that all their vehicles were submerged. (p. 337, TSN, July 20, 1973)
According to Asis, he arrived at his office at 8:00 A.M. on June 30 and after briefing his
men on what to do they started out. (p. 338, lbid) One or two days after the typhoon,
the INELCO people heard "rumors that someone was electrocuted" so he sent one of
his men to the place but his man reported back that there was no damaged wire. (p.
385, Id.) Loreto Abijero, chief lineman of defendant, corroborated Engr. Juan. He
testified that at about 8:00 A.M. on June 29, 1967 Engr. Juan came to the INELCO
plant and asked the INELCO people to inspect their lines. He went with Engr. Juan and
their inspection lasted from 8:00 A.M. to 12:00 noon. (pp. 460, 465, TSN, Jan. 28,
1975) Fabico Abijero lineman of defendant, testified that at about 6:00 on June 29,
1967 the typhoon ceased. At that time, he was at the main building of the Divine Word
College of Laoag where he had taken his family for refuge. (pp. 510-511, Ibid.)
In times of calamities such as the one which occurred in Laoag City on the night of
June 28 until the early hours of June 29, 1967, extraordinary diligence requires a
supplier of electricity to be in constant vigil to prevent or avoid any probable incident
that might imperil life or limb. The evidence does not show that defendant did that. On
the contrary, evidence discloses that there were no men (linemen or otherwise)
policing the area, nor even manning its office. (CA Decision, pp. 24-25, Rollo)
Indeed, under the circumstances of the case, petitioner was negligent in seeing to it
that no harm is done to the general public"... considering that electricity is an agency,
subtle and deadly, the measure of care required of electric companies must be
commensurate with or proportionate to the danger. The duty of exercising this high
degree of diligence and care extends to every place where persons have a right to be"
(Astudillo vs. Manila Electric, 55 Phil. 427). The negligence of petitioner having been
shown, it may not now absolve itself from liability by arguing that the victim's death was
solely due to a fortuitous event. "When an act of God combines or concurs with the
negligence of the defendant to produce an injury, the defendant is liable if the injury
would not have resulted but for his own negligent conduct or omission" (38 Am. Jur., p.
649).
Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no
application in the case at bar. It is imperative to note the surrounding circumstances
which impelled the deceased to leave the comforts of a roof and brave the subsiding
typhoon. As testified by Linda Alonzo Estavillo (see TSN, p. 5, 26 Sept. 1972) and Aida
Bulong (see TSN, p. 43, 26 Sept. 1972), the deceased, accompanied by the former
two, were on their way to the latter's grocery store "to see to it that the goods were not
flooded." As such, shall We punish her for exercising her right to protect her property
from the floods by imputing upon her the unfavorable presumption that she assumed
the risk of personal injury? Definitely not. For it has been held that a person is excused
from the force of the rule, that when he voluntarily assents to a known danger he must
abide by the consequences, if an emergency is found to exist or if the life or property of
another is in peril (65A C.S.C. Negligence(174(5), p. 301), or when he seeks to rescue
his endangered property (Harper and James, "The Law of Torts." Little, Brown and Co.,
1956, v. 2, p. 1167). Clearly, an emergency was at hand as the deceased's property, a
source of her livelihood, was faced with an impending loss. Furthermore, the
deceased, at the time the fatal incident occurred, was at a place where she had a right
to be without regard to petitioner's consent as she was on her way to protect her
merchandise. Hence, private respondents, as heirs, may not be barred from recovering

37

damages as a result of the death caused by petitioner's negligence (ibid., p. 1165,


1166).
But petitioner assails the CA for having abused its discretion in completely reversing
the trial court's findings of fact, pointing to the testimonies of three of its employees its
electrical engineer, collector-inspector, lineman, and president-manager to the effect
that it had exercised the degree of diligence required of it in keeping its electric lines
free from defects that may imperil life and limb. Likewise, the said employees of
petitioner categorically disowned the fatal wires as they appear in two photographs
taken on the afternoon of June 29, 1967 (Exhs. "D" and "E"), suggesting that said wires
were just hooked to the electric post (petitioner's Memorandum, p. 170, Rollo).
However, as the CA properly held, "(t)he finding of the lower court ... was based on
what the defendant's employees were supposed to do, not on what they actually did or
failed to do on the date in question, and not on the occasion of the emergency situation
brought about by the typhoon" (CA Decision, p. 25, Rollo). And as found by the CA,
which We have already reiterated above, petitioner was in fact negligent. In a like
manner, petitioner's denial of ownership of the several wires cannot stand the logical
conclusion reached by the CA when it held that "(t)he nature of the wounds as
described by the witnesses who saw them can lead to no other conclusion than that
they were 'burns', and there was nothing else in the street where the victim was wading
thru which could cause a burn except the dangling live wire of defendant company"
(supra).
"When a storm occurs that is liable to prostrate the wires, due care requires prompt
efforts to discover and repair broken lines" (Cooley on Torts, 4th ed., v. 3, p. 474). The
fact is that when Engineer Antonio Juan of the National Power Corporation set out in
the early morning of June 29, 1967 on an inspection tour, he saw grounded and
disconnected lines hanging from posts to the ground but did not see any INELCO
lineman either in the streets or at the INELCO office (vide, CA Decision, supra). The
foregoing shows that petitioner's duty to exercise extraordinary diligence under the
circumstance was not observed, confirming the negligence of petitioner. To aggravate
matters, the CA found:
. . .even before June 28 the people in Laoag were already alerted about the impending
typhoon, through radio announcements. Even the fire department of the city
announced the coming of the big flood. (pp. 532-534, TSN, March 13, 1975) At the
INELCO irregularities in the flow of electric current were noted because "amperes of
the switch volts were moving". And yet, despite these danger signals, INELCO had to
wait for Engr. Juan to request that defendant's switch be cut off but the harm was
done. Asked why the delay, Loreto Abijero answered that he "was not the machine
tender of the electric plant to switch off the current." (pp. 467-468, Ibid.) How very
characteristic of gross inefficiency! (CA Decision, p. 26, Rollo)
From the preceding, We find that the CA did not abuse its discretion in reversing the
trial court's findings but tediously considered the factual circumstances at hand
pursuant to its power to review questions of fact raised from the decision of the
Regional Trial Court, formerly the Court of First Instance (see sec. 9, BP 129).
In considering the liability of petitioner, the respondent CA awarded the following in
private respondent's favor: P30,229.45 in actual damages (i.e., P12,000 for the victim's
death and P18,229.45 for funeral expenses); P50,000 in compensatory damages,
computed in accordance with the formula set in the Villa-Rey Transit case (31 SCRA
511) with the base of P15,000 as average annual income of the deceased; P10,000 in
exemplary damages; P3,000 attorney's fees; and costs of suit. Except for the award of
P12,000 as compensation for the victim's death, We affirm the respondent CA's award
for damages and attorney's fees. Pusuant to recent jurisprudence (People vs.

38

Mananquil, 132 SCRA 196; People vs. Traya, 147 SCRA 381), We increase the said
award of P12,000 to P30,000, thus, increasing the total actual damages to P48,229.45.
The exclusion of moral damages and attorney's fees awarded by the lower court was
properly made by the respondent CA, the charge of malice and bad faith on the part of
respondents in instituting his case being a mere product of wishful thinking and
speculation. Award of damages and attorney's fees is unwarranted where the action
was filed in good faith; there should be no penalty on the right to litigate (Espiritu vs.
CA, 137 SCRA 50). If damage results from a person's exercising his legal rights, it is
damnum absque injuria (Auyong Hian vs. CTA, 59 SCRA 110).
WHEREFORE, the questioned decision of the respondent, except for the slight
modification that actual damages be increased to P48,229.45 is hereby AFFIRMED.
SO ORDERED.
G.R. No. 104408 June 21, 1993
METRO
MANILA
TRANSIT
CORPORATION,
vs.
THE COURT OF APPEALS AND NENITA CUSTODIA, respondents.
Office of the Government Corporate Counsel for petitioner.
Renato P. Decena and Restituto Abjero for private respondent.

petitioner,

REGALADO, J.:
This appeal calls for a review of the legal validity and sufficiency of petitioner's
invocation of due diligence in the selection and supervision of employees as its
defense against liability resulting from a vehicular collision. With the facility by which
such a defense can be contrived and our country having reputedly the highest traffic
accident rate in its geographical region, it is indeed high time for us to once again
address this matter which poses not only a litigation issue for the courts but affects the
very safety of our streets.
The facts of the case at bar are recounted for us by respondent court, thus
At about six o'clock in the morning of August 28, 1979, plaintiff-appellant Nenita
Custodio boarded as a paying passenger a public utility jeepney with plate No. D7 305
PUJ Pilipinas 1979, then driven by defendant Agudo Calebag and owned by his codefendant Victorino Lamayo, bound for her work at Dynetics Incorporated located in
Bicutan, Taguig, Metro Manila, where she then worked as a machine operator earning
P16.25 a day. While the passenger jeepney was travelling at (a) fast clip along DBP
Avenue, Bicutan, Taguig, Metro Manila another fast moving vehicle, a Metro Manila
Transit Corp. (MMTC, for short) bus bearing plate no. 3Z 307 PUB (Philippines) "79
driven by defendant Godofredo C. Leonardo was negotiating Honeydew Road,
Bicutan, Taguig, Metro Manila bound for its terminal at Bicutan. As both vehicles
approached the intersection of DBP Avenue and Honeydew Road they failed to slow
down and slacken their speed; neither did they blow their horns to warn approaching
vehicles. As a consequence, a collision between them occurred, the passenger
jeepney ramming the left side portion of the MMTC bus. The collision impact caused
plaintiff-appellant Nenita Custodio to hit the front windshield of the passenger jeepney
and (she) was thrown out therefrom, falling onto the pavement unconscious with
serious physical injuries. She was brought to the Medical City Hospital where she
regained consciousness only after one (1) week. Thereat, she was confined for twentyfour (24) days, and as a consequence, she was unable to work for three and one half
months (31/2). 1

39

A complaint for damages 2 was filed by herein private respondent, who being then a
minor was assisted by her parents, against all of therein named defendants following
their refusal to pay the expenses incurred by the former as a result of the collision.
Said defendants denied all the material allegations in the complaint and pointed an
accusing finger at each other as being the party at fault. Further, herein petitioner
Metro Manila Transit Corporation (MMTC), a government-owned corporation and one
of the defendants in the court a quo, along with its driver, Godofredo Leonardo,
contrarily averred in its answer with cross-claim and counterclaim 3 that the MMTC bus
was driven in a prudent and careful manner by driver Leonardo and that it was the
passenger jeepney which was driven recklessly considering that it hit the left middle
portion of the MMTC bus, and that it was defendant Lamayo, the owner of the jeepney
and employer of driver Calebag, who failed to exercise due diligence in the selection
and supervision of employees and should thus be held solidarily liable for damages
caused to the MMTC bus through the fault and negligence of its employees.
Defendant Victorino Lamayo, for his part, alleged in his answer with cross-claim and
counterclaim 4 that the damages suffered by therein plaintiff should be borne by
defendants MMTC and its driver, Godofredo Leonardo, because the latter's negligence
was the sole and proximate cause of the accident and that MMTC failed to exercise
due diligence in the selection and supervision of its employees.
By order of the trial court, defendant Calebag was declared in default for failure to file
an answer. 5 Thereafter, as no amicable settlement was reached during the pre-trial
conference, 6 trial on the merits ensued with the opposing parties presenting their
respective witnesses and documentary evidence.
Herein private respondent Nenita Custodia, along with her parents, were presented as
witnesses for the prosecution. In addition, Dr. Edgardo del Mundo, the attending
physician, testified on the cause, nature and extent of the injuries she sustained as a
result of the vehicular mishap. 7 On the other hand, defendant MMTC presented as
witnesses Godofredo Leonardo, Christian Bautista and Milagros Garbo. Defendant
Lamayo, however, failed to present any witness.
Milagros Garbo testified that, as a training officer of MMTC, she was in charge of the
selection of the company's bus drivers, conducting for this purpose a series of training
programs and examinations. According to her, new applicants for job openings at
MMTC are preliminarily required to submit certain documents such as National Bureau
of Investigation (NBI) clearance, birth or residence certificate, ID pictures, certificate or
diploma of highest educational attainment, professional driver's license, and work
experience certification. Re-entry applicants, aside from the foregoing requirements,
are additionally supposed to submit company clearance for shortages and damages
and revenue performance for the preceding year. Upon satisfactory compliance with
said requisites, applicants are recommended for and subjected to a Preliminary
interview, followed by a record check to find out whether they are included in the list of
undesirable employees given by other companies.
Thereafter, she continued, if an applicant is found to be acceptable, a final interview by
the Chief Supervisor is scheduled and followed by a training program which consists of
seminars and actual driving and Psycho-physical tests and X-ray examinations. The
seminars, which last for a total of eighteen (18) days, include familiarization with
assigned routes, existing traffic rules and regulations, Constabulary Highway Patrol
Group (CHPG) seminar on defensive driving, preventive maintenance, proper vehicle
handling, interpersonal relationship ,and administrative rules on discipline and on-thejob training. Upon completion of all the seminars and tests, a final clearance is issued,
an employment contract is executed and the driver is ready to report for duty. 8
MMTC's Transport Supervisor, Christian Bautista, testified that it was his duty to
monitor the daily operation of buses in the field, to countercheck the dispatcher on duty

40

prior to the operation of the buses in the morning and to see to it that the bus crew
follow written guidelines of the company, which include seeing to it that its employees
are in proper uniform, briefed in traffic rules and regulations before the start of duty, fit
to drive and, in general, follow other rules and regulations of the Bureau of Land
Transportation as well as of the company. 9
The reorganized trial court, in its decision of August 1, 1989, 10 found both drivers of
the colliding vehicles concurrently negligent for non-observance of appropriate traffic
rules and regulations and for failure to take the usual precautions when approaching
an intersection. As joint tortfeasors, both drivers, as well as defendant Lamayo, were
held solidarily liable for damages sustained by plaintiff Custodio. Defendant MMTC, on
the bases of the evidence presented was, however, absolved from liability for the
accident on the ground that it was not only careful and diligent in choosing and
screening applicants for job openings but was also strict and diligent in supervising its
employees by seeing to it that its employees were in proper uniforms, briefed in traffic
rules and regulations before the start of duty, and that it checked its employees to
determine whether or not they were positive for alcohol and followed other rules and
regulations and guidelines of the Bureau of Land Transportation and of the company.
The trial court accordingly ruled:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered dismissing
the complaint against the Metro Manila Transit Corporation and ordering defendants
Agudo P. Calebag, Victorino Lamayo and Godofredo C. Leonardo to pay plaintiffs,
jointly and severally, the following:
a) the sum of P10,000.00 by way of medical expenses;
b) the sum of P5,000.00 by way of expenses of litigation;
c) the sum of P15,000.00 by way of moral damages;
d) the sum of P2,672.00 by way of loss of earnings;
e) the sum of P5,000.00 by way of exemplary damages;
f) the sum of P6,000.00 by way of attorney's fees; and
g) costs of suit.
SO ORDERED. 11
Plaintiff's motion to have that portion of the trial court's decision absolving MMTC from
liability reconsidered 12 having been denied for lack of merit, 13 an appeal was filed by
her with respondent appellate court. After consideration of the appropriate pleadings
on appeal and finding the appeal meritorious, the Court of Appeals modified the trial
court's decision by holding MMTC solidarily liable with the other defendants for the
damages awarded by the trial court because of their concurrent negligence, concluding
that while there is no hard and fast rule as to what constitutes sufficient evidence to
prove that an employer has exercised the due diligence required of it in the selection
and supervision of its employees, based on the quantum of evidence adduced the said
appellate court was not disposed to say that MMTC had exercised the diligence
required of a good father of a family in the selection and supervision of its driver,
Godofredo Leonardo. 14
The Court of Appeals was resolute in its conclusion and denied the motions for
reconsideration of appellee Custodio and appellant MMTC in a resolution dated
February 17, 1982, 15 thus prompting MMTC to file the instant petition invoking the
review powers of this Court over the decision of the Court of Appeals, raising as issues
for resolution whether or not (1) the documentary evidence to support the positive
testimonies of witnesses Garbo and Bautista are still necessary; (2) the testimonies of
witnesses Garbo and Bautista may still be disturbed on appeal; and (3) the evidence
presented during the trial with respect to the proof of due diligence of petitioner MMTC
in the selection and supervision of its employees, particularly driver Leonardo, is
sufficient.

41

Prefatorily, private respondent questions the timeliness of the filing of the petition at bar
in view of the procedural stricture that the timely perfection of an appeal is both a
mandatory and jurisdictional requirement. This is a legitimate concern on the part of
private respondent and presents an opportune occasion to once again clarify this point
as there appears to be some confusion in the application of the rules and interpretative
rulings regarding the computation of reglementary periods at this stage of the
proceedings.
The records of this case reveal that the decision of respondent Court of Appeals, dated
October 31, 1991, was received by MMTC on November 18, 1991 16 and it seasonably
filed a motion for the reconsideration thereof on November 28, 1991. 17 Said motion for
reconsideration was denied by respondent court in its resolution dated February 17,
1992, which in turn was received by MMTC on March 9, 1992. 18 Therefore, it had,
pursuant to Section 1, Rule 45 of the Rules of Court, fifteen (15) days therefrom or up
to March 24, 1992 within which to file its petition, for review on certiorari. Anticipating,
however, that it may not be able to file said petition before the lapse of the
reglementary period therefor, MMTC filed a motion on March 19, 1992 for an extension
of thirty (30) days to file the present petition, with proof of service of copies thereof to
respondent court and the adverse parties. The Court granted said motion, with the
extended period to be counted from the expiration of the reglementary period. 19
Consequently, private respondent had thirty (30) days from March 24, 1992 within
which to file its petition, or up to April 23, 1992, and the eventual filing of said petition
on April 14, 1992 was well within the period granted by the Court.
We digress to reiterate, in view of erroneous submissions that we continue to receive,
that in the case of a petition for review on certiorari from a decision rendered by the
Court of Appeals, Section 1, Rule 45 of the Rules of Court, which has long since been
clarified in Lacsamana vs. The Hon. Second Special Cases Division of the
Intermediate Appellate Court, et al., 20 allows the same to be filed "within fifteen (15)
days from notice of judgment or of the denial of the motion for reconsideration filed in
due time, and paying at the same time to the corresponding docket fee." In other
words, in the event a motion for reconsideration is filed and denied, the period of fifteen
(15) days begins to run all over again from notice of the denial resolution. Otherwise
put, if a motion for reconsideration is filed, the reglementary period within which to
appeal the decision of the Court of Appeals to the Supreme Court is reckoned from the
date the party who intends to appeal received the order denying the motion for
reconsideration. 21 Furthermore, a motion for extension of time to file a petition for
review may be filed with this Court within said reglementary period, paying at the same
time the corresponding docket fee.
1. The first two issues raised by petitioner shall be correlatively discussed in view of
their interrelation.
In its present petition, MMTC insists that the oral testimonies of its employees were
presented as witnesses in its behalf sufficiently prove, even without the presentation
documentary evidence, that driver Leonardo had complied with all the hiring and
clearance requirements and had undergone all trainings, tests and examinations
preparatory to actual employment, and that said positive testimonies spell out the rigid
procedure for screening of job applicants and the supervision of its employees in the
field. It underscored the fact that it had indeed complied with the measure of diligence
in the selection and supervision of its employees as enunciated in Campo, et al. vs.
Camarote, et al. 22 requiring an employer, in the exercise of the diligence of a good
father of a family, to carefully examine the applicant for employment as to his
qualifications, experience and record service, and not merely be satisfied with the
possession of a professional driver's license.

42

It goes on to say since the testimonies of these witnesses were allegedly neither
discredited nor impeached by the adverse party, they should be believed and not
arbitrarily disregarded or rejected nor disturbed on appeal. It assiduously argues that
inasmuch as there is no law requiring that facts alleged by petitioner be established by
documentary evidence, the probative force and weight of their testimonies should not
be discredited, with the further note that the lower court having passed upon the
relevancy of the oral testimonies and considered the same as unrebutted, its
consideration should no longer be disturbed on appeal. 23
Private respondent, on the other hand, retorts that the factual findings of respondent
court are conclusive upon the High Court which cannot be burdened with the task of
analyzing and weighing the evidence all over again. 24
At this juncture, it suffices to note that factual findings of the trial court may be reversed
by the Court of Appeals, which is vested by law with the power to review both legal and
factual issues, if on the evidence of record, it appears that the trial court may have
been mistaken 25 particularly in the appreciation of evidence, which is within the
domain of the Court of Appeals. 26 The general rule laid down in a plethora of cases is
that such findings of fact by the Court of Appeals are conclusive upon and beyond the
power of review of the Supreme Court. 27 However, it is now well-settled that while the
findings of fact of the Court of Appeals are entitled to great respect, and even finality at
times, that rule is not inflexible and is subject to well established exceptions, to wit: (1)
when the conclusion is a finding grounded entirely on speculation, surmises and
conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible;
(3) where there is grave abuse of discretion; (4) when the judgment is based on a
misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the
Court of Appeals, in making its findings, went beyond the issues of the case and the
same are contrary to the admissions of both appellant and appellee; (7) when the
findings of the Court of Appeals are contrary to those of the trial court; (8) when the
findings of fact are conclusions without citation of specific evidence on which they are
based; (9) when the facts set forth in the petition, as well as in the petitioner's main and
reply briefs are not disputed by the respondents and (10) when the findings of fact of
the Court of Appeals are premised on the supposed absence of evidence and are
contradicted by the evidence on record. 28
When as in this case, the findings of the Court of Appeals and the trial court are
contrary to each other, this court may scrutinize the evidence on record, 29 in order to
arrive at a correct finding based thereon. 30
A perusal of the same shows that since there is no dispute as to the finding of
concurrent negligence on the part of the defendant Calebag, the driver of the
passenger jeepney, and co-defendant Leonardo, the bus driver of petitioner MMTC,
both of whom were solidarily held liable with defendant Lamayo, the owner of the
jeepney, we are spared the necessity of determining the sufficiency of evidence
establishing the fact of negligence. 31 The contrariety is in the findings of the two lower
courts, and which is the subject of this present controversy, with regard to the liability
of MMTC as employer of one the erring drivers.
The trial court, in absolving MMTC from liability ruled that
On the question as to whether defendant MMTC was successful in proving its defense
that indeed it had exercised the due diligence of a good father of a family in the
selection and supervision of defendant Leonardo, this Court finds that based on the
evidence presented during the trial, defendant MMTC was able to prove that it was not
only careful and diligent in choosing and screening applicants for job openings but also
strict (and) diligent in supervising its employees by seeing to it that its employees were
in proper uniforms, briefed in traffic rules and regulations before the start of duty,
checked employees to determine whether they were positive for alcohol and followed

43

other rules and regulations and guidelines of the Bureau of Land Transportation as well
as its company. Having successfully proven such defense, defendant MMTC therefore,
cannot be held liable for the accident.
Having reached this conclusion, the Court now, holds that defendant MMTC be totally
absolved from liability and that the complaint against it be dismissed. . . . 32
whereas respondent court was of the opinion that
It is surprising though that witness Milagros Garbo did not testify nor present any
evidence that defendant-appellee's driver, defendant Godofredo Leonardo has
complied with or has undergone all clearances and trainings she referred to. The
clearances, result of seminars and tests which Godofredo Leonardo submitted and
complied with, if any, were not presented in court despite the fact that they are
obviously in the possession and control of defendant-appellee. Instead, it resorted to
generalities. The Court has ruled that due diligence in (the) selection and supervision
of employee(s) are not proved by mere testimonies to the effect that its applicant has
complied with all the company requirements before one is admitted as an employee
but without proof thereof. . . .
On the part of Christian Bautista, the transport supervisor of defendant-appellee, he
testified that it is his duty to monitor the operation of buses in the field; to countercheck
the dispatchers' duty prior to the operation of the buses in the morning; to see to it that
bus crew follows written guidelines of the company (t.s.n., April 29, 1988, pp. 4-5), but
when asked to present in court the alleged written guidelines of the company he
merely stated that he brought with him a "wrong document" and defendant-appellee's
counsel asked for reservation to present such written guidelines in the next hearing but
the same was (sic) never presented in court. 33
A thorough and scrupulous review of the records of this case reveals that the
conclusion of respondent Court of Appeals is more firmly grounded on jurisprudence
and amply supported by the evidence of record than that of the court below.
It is procedurally required for each party in a case to prove his own affirmative
assertion by the degree of evidence required by law. 34 In civil cases, the degree of
evidence required of a party in order to support his claim is preponderance of
evidence, or that evidence adduced by one party which is more conclusive and
credible than that of the other party. It is, therefore, incumbent on the plaintiff who is
claiming a right to prove his case. Corollarily, defendant must likewise prove own
allegation to buttress its claim that it is not liable. 35
In fine, the party, whether plaintiff or defendant, who asserts the affirmative of the issue
has the burden of presenting at the trial such amount of evidence required by law to
obtain a favorable judgment. 36 It is entirely within each of the parties discretion,
consonant with the theory of the case it or he seeks to advance and subject to such
procedural strategy followed thereby, to present all available evidence at its or his
disposal in the manner which may be deemed necessary and beneficial to prove its or
his position, provided only that the same shall measure up to the quantum of evidence
required by law. In making proof in its or his case, it is paramount that the best and
most complete evidence be formally entered. 37
Coming now to the case at bar, while there is no rule which requires that testimonial
evidence, to hold sway, must be corroborated by documentary evidence, or even
subject evidence for that matter, inasmuch as the witnesses' testimonies dwelt on mere
generalities, we cannot consider the same as sufficiently persuasive proof that there
was observance of due diligence in the selection and supervision of employees. 38
Petitioner's attempt to prove its diligentissimi patris familias in the selection and
supervision of employees through oral evidence must fail as it was unable to buttress
the same with any other evidence, object or documentary, which might obviate the
apparent biased nature of the testimony. 39

44

Our view that the evidence for petitioner MMTC falls short of the required evidentiary
quantum as would convincingly and undoubtedly prove its observance of the diligence
of a good father of a family has its precursor in the underlying rationale pronounced in
the earlier case of Central Taxicab Corp. vs. Ex-Meralco Employees Transportation
Co., et al., 40 set amidst an almost identical factual setting, where we held that:
. . . . This witness spoke of an "affidavit of experience" which a driver-applicant must
accomplish before he is employed by the company, a written "time schedule" for each
bus, and a record of the inspections and thorough checks pertaining to each bus
before it leaves the car barn; yet no attempt was ever made to present in evidence any
of these documents, despite the fact that they were obviously in the possession and
control of the defendant company.
xxx xxx xxx
Albert also testified that he kept records of the preliminary and final tests given him as
well as a record of the qualifications and experience of each of the drivers of the
company. It is rather strange, therefore, that he failed to produce in court the all
important record of Roberto, the driver involved in this case.
The failure of the defendant company to produce in court any "record" or other
documentary proof tending to establish that it had exercised all the diligence of a good
father of a family in the selection and supervision of its drivers and buses,
notwithstanding the calls therefor by both the trial court and the opposing counsel,
argues strongly against its pretensions.
We are fully aware that there is no hard-and-fast rule on the quantum of evidence
needed to prove due observance of all the diligence of a good father of a family as
would constitute a valid defense to the legal presumption of negligence on the part of
an employer or master whose employee has by his negligence, caused damage to
another. . . . (R)educing the testimony of Albert to its proper proportions, we do not
have enough trustworthy evidence left to go by. We are of the considered opinion,
therefore, that the believable evidence on the degree of care and diligence that has
been exercised in the selection and supervision of Roberto Leon y Salazar, is not
legally sufficient to overcome the presumption of negligence against the defendant
company.
Whether or not the diligence of a good father of a family has been observed by
petitioner is a matter of proof which under the circumstances in the case at bar has not
been clearly established. It is not felt by the Court that there is enough evidence on
record as would overturn the presumption of negligence, and for failure to submit all
evidence within its control, assuming the putative existence thereof, petitioner MMTC
must suffer the consequences of its own inaction and indifference.
2. In any event, we do not find the evidence presented by petitioner sufficiently
convincing to prove the diligence of a good father of a family, which for an employer
doctrinally translates into its observance of due diligence in the selection and
supervision of its employees but which mandate, to use an oft-quoted phrase, is more
often honored in the breach than in the observance.
Petitioner attempted to essay in detail the company's procedure for screening job
applicants and supervising its employees in the field, through the testimonies of
Milagros Garbo, as its training officer, and Christian Bautista, as its transport
supervisor, both of whom naturally and expectedly testified for MMTC. It then
concluded with its sweeping pontifications that "thus, there is no doubt that considering
the nature of the business of petitioner, it would not let any applicant-drivers to be (sic)
admitted without undergoing the rigid selection and training process with the end (in)
view of protecting the public in general and its passengers in particular; . . . thus, there
is no doubt that applicant had fully complied with the said requirements otherwise
Garbo should not have allowed him to undertake the next set of requirements . . . and

45

the training conducted consisting of seminars and actual driving tests were satisfactory
otherwise he should have not been allowed to drive the subject vehicle. 41
These statements strike us as both presumptuous and in the nature of petitio principii,
couched in generalities and shorn of any supporting evidence to boost their verity. As
earlier observed, respondent court could not but express surprise, and thereby its
incredulity, that witness Garbo neither testified nor presented any evidence that driver
Leonardo had complied with or had undergone all the clearances and trainings she
took pains to recite and enumerate. The supposed clearances, results of seminars and
tests which Leonardo allegedly submitted and complied with were never presented in
court despite the fact that, if true, then they were obviously in the possession and
control of petitioner. 42
The case at bar is clearly within the coverage of Article 2176 and 2177, in relation to
Article 2180, of the Civil Code provisions on quasi-delicts as all the elements thereof
are present, to wit: (1) damages suffered by the plaintiff, (2) fault or negligence of the
defendant or some other person for whose act he must respond, and (3) the
connection of cause and effect between fault or negligence of the defendant and the
damages incurred by plaintiff. 43 It is to be noted that petitioner was originally sued as
employer of driver Leonardo under Article 2180, the pertinent parts of which provides
that:
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 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 basis of the employer's vicarious liability has been explained under this
ratiocination:
The responsibility imposed by this article arises by virtue of a presumption juris tantum
of negligence on the part of the persons made responsible under the article, derived
from their failure to exercise due care and vigilance over the acts of subordinates to
prevent them from causing damage. Negligence is imputed to them by law, unless they
prove the contrary. Thus, the last paragraph of the article says that such responsibility
ceases if is proved that the persons who might be held responsible under it exercised
the diligence of a good father of a family (diligentissimi patris familias) to prevent
damage. It is clear, therefore, that it is not representation, nor interest, nor even the
necessity of having somebody else answer for the damages caused by the persons
devoid of personality, but it is the non-performance of certain duties of precaution and
prudence imposed upon the persons who become responsible by civil bond uniting the
actor to them, which forms the foundation of such responsibility. 44
The above rule is, of course, applicable only where there is an employer-employee
relationship, although it is not necessary that the employer be engaged in business or
industry. Whether or not engaged in any business or industry, the employer under
Article 2180 is liable for torts committed by his employees within the scope of their
assigned tasks. But, it is necessary first to establish the employment relationship. Once
this is done, the plaintiff must show, to hold the employer liable, that the employee was
acting within the scope of his assigned task when the tort complained of was
committed. It is only then that the defendant, as employer, may find it necessary to
interpose the defense of due diligence in the selection and supervision of employees.

46

45

The diligence of a good father of a family required to be observed by employers to


prevent damages under Article 2180 refers to due diligence in the selection and
supervision of employees in order to protect the public. 46
With the allegation and subsequent proof of negligence against the defendant driver
and of an employer-employee relation between him and his co-defendant MMTC in this
instance, the case in undoubtedly based on a quasi-delict under Article 2180 47 When
the employee causes damage due to his own negligence while performing his own
duties, there arises the juris tantum presumption that the employer is negligent, 48
rebuttable only by proof of observance of the diligence of a good father of a family. For
failure to rebut such legal presumption of negligence in the selection and supervision of
employees, the employer is likewise responsible for damages, 49 the basis of the
liability being the relationship of pater familias or on the employer's own negligence. 50
As early as the case of Gutierrez vs. Gutierrez, 51 and thereafter, we have consistently
held that where the injury is due to the concurrent negligence of the drivers of the
colliding vehicles, the drivers and owners of the said vehicles shall be primarily, directly
and solidarily liable for damages and it is immaterial that one action is based on quasidelict and the other on culpa contractual, as the solidarily of the obligation is justified by
the very nature thereof. 52
It should be borne in mind that the legal obligation of employers to observe due
diligence in the selection and supervision of employees is not to be considered as an
empty play of words or a mere formalism, as appears to be the fashion of the times,
since the non-observance thereof actually becomes the basis of their vicarious liability
under Article 2180.
On the matter of selection of employees, Campo vs. Camarote, supra, lays down this
admonition:
. . . . In order tat the owner of a vehicle may be considered as having exercised all
diligence of a good father of a family, he should not have been satisfied with the mere
possession of a professional driver's license; he should have carefully examined the
applicant for employment as to his qualifications, his experience and record of service.
These steps appellant failed to observe; he has therefore, failed to exercise all due
diligence required of a good father of a family in the choice or selection of driver.
Due diligence in the supervision of employees, on the other hand, includes the
formulation of suitable rules and regulations for the guidance of employees and the
issuance of proper instructions intended for the protection of the public and persons
with whom the employer has relations through his or its employees and the imposition
of necessary disciplinary measures upon employees in case of breach or as may be
warranted to ensure the performance of acts indispensable to the business of and
beneficial to their employer. 53 To this, we add that actual implementation and
monitoring of consistent compliance with said rules should be the constant concern of
the employer, acting through dependable supervisors who should regularly report on
their supervisory functions.
In order that the defense of due diligence in the selection and supervision of
employees may be deemed sufficient and plausible, it is not enough to emptily invoke
the existence of said company guidelines and policies on hiring and supervision. As
the negligence of the employee gives rise to the presumption of negligence on the part
of the employer, the latter has the burden of proving that it has been diligent not only in
the selection of employees but also in the actual supervision of their work. The mere
allegation of the existence of hiring procedures and supervisory policies, without
anything more, is decidedly not sufficient to overcome presumption.
We emphatically reiterate our holding, as a warning to all employers, that "(t)he mere
formulation of various company policies on safety without showing that they were being
complied with is not sufficient to exempt petitioner from liability arising from negligence

47

of its employees. It is incumbent upon petitioner to show that in recruiting and


employing the erring driver the recruitment procedures and company policies on
efficiency and safety were followed." 54 Paying lip-service to these injunctions or merely
going through the motions of compliance therewith will warrant stern sanctions from
the Court.
These obligations, imposed by the law and public policy in the interests and for the
safety of the commuting public, herein petitioner failed to perform. Respondent court
was definitely correct in ruling that ". . . due diligence in the selection and supervision
of employee (is) not proved by mere testimonies to the effect that its applicant has
complied with all the company requirements before one is admitted as an employee
but without proof thereof." 55 It is further a distressing commentary on petitioner that it
is a government-owned public utility, maintained by public funds, and organized for the
public welfare.
The Court it is necessary to once again stress the following rationale behind these allimportant statutory and jurisprudential mandates, for it has been observed that despite
its pronouncement in Kapalaran Bus Line vs. Coronado, et al., supra, there has been
little improvement in the transport situation in the country:
In requiring the highest possible degree of diligence from common carriers and
creating a presumption of negligence against them, the law compels them to curb the
recklessness of their drivers. While the immediate beneficiaries of the standard of
extraordinary diligence are, of course, the passengers and owners of the cargo carried
by a common carrier, they are not the only persons that the law seeks to benefit. For if
common carriers carefully observe the statutory standard of extraordinary diligence in
respect of their own passengers, they cannot help but simultaneously benefit
pedestrians and the owners and passengers of other vehicles who are equally entitled
to the safe and convenient use of our roads and highways. The law seeks to stop and
prevent the slaughter and maiming of people (whether passengers or not) and the
destruction of property (whether freight or not) on our highways by buses, the very size
and power of which seem often to inflame the minds of their drivers. . . .
Finally, we believe that respondent court acted in the exercise of sound discretion
when it affirmed the trial court's award, without requiring the payment of interest
thereon as an item of damages just because of delay in the determination thereof,
especially since private respondent did not specifically pray therefor in her complaint.
Article 2211 of the Civil Code provides that in quasi-delicts, interest as a part of the
damages may be awarded in the discretion of the court, and not as a matter of right.
We do not perceive that there have been international dilatory maneuvers or any
special circumstances which would justify that additional award and, consequently, we
find no reason to disturb said ruling.
WHEREFORE, the impugned decision of respondent Court of Appeals is hereby
AFFIRMED.
SO ORDERED.
G.R. No. L-83524 October 13, 1989
ERNESTO
KRAMER,
JR.
and
MARIA
vs.
HON. COURT OF APPEALS and TRANS-ASIA
respondents.
Rodolfo D. Mapile for petitioners.
Jose Al. Perez for private respondent.

KRAMER,
SHIPPING

petitioners,
LINES,

INC.,

GANCAYCO, J.:

48

The principal issue in this Petition for Review is whether or not a Complaint for
damages instituted by the petitioners against the private respondent arising from a
marine collision is barred by the statute of limitations.
The record of the case discloses that in the early morning of April 8, 1976, the F/B
Marjolea, a fishing boat owned by the petitioners Ernesto Kramer, Jr. and Marta
Kramer, was navigating its way from Marinduque to Manila. Somewhere near
Maricabon Island and Cape Santiago, the boat figured in a collision with an inter-island
vessel, the M/V Asia Philippines owned by the private respondent Trans-Asia Shipping
Lines, Inc. As a consequence of the collision, the F/B Marjolea sank, taking with it its
fish catch.
After the mishap, the captains of both vessels filed their respective marine protests
with the Board of Marine Inquiry of the Philippine Coast Guard. The Board conducted
an investigation for the purpose of determining the proximate cause of the maritime
collision.
On October 19, 1981, the Board concluded that the loss of the F/B Marjolea and its fish
catch was attributable to the negligence of the employees of the private respondent
who were on board the M/V Asia Philippines during the collision. The findings made by
the Board served as the basis of a subsequent Decision of the Commandant of the
Philippine Coast Guard dated April 29, 1982 wherein the second mate of the M/V Asia
Philippines was suspended from pursuing his profession as a marine officer. 1
On May 30, 1985, the petitioners instituted a Complaint for damages against the
private respondent before Branch 117 of the Regional Trial Court in Pasay City. 2 The
suit was docketed as Civil Case No. 2907-P.
The private respondent filed a Motion seeking the dismissal of the Complaint on the
ground of prescription. He argued that under Article 1146 of the Civil Code, 3 the
prescriptive period for instituting a Complaint for damages arising from a quasi-delict
like a maritime collision is four years. He maintained that the petitioners should have
filed their Complaint within four years from the date when their cause of action
accrued, i.e., from April 8, 1976 when the maritime collision took place, and that
accordingly, the Complaint filed on May 30, 1985 was instituted beyond the four-year
prescriptive period.
For their part, the petitioners contended that maritime collisions have peculiarities and
characteristics which only persons with special skill, training and experience like the
members of the Board of Marine Inquiry can properly analyze and resolve. The
petitioners argued that the running of the prescriptive period was tolled by the filing of
the marine protest and that their cause of action accrued only on April 29, 1982, the
date when the Decision ascertaining the negligence of the crew of the M/V Asia
Philippines had become final, and that the four-year prescriptive period under Article
1146 of the Civil Code should be computed from the said date. The petitioners
concluded that inasmuch as the Complaint was filed on May 30, 1985, the same was
seasonably filed.
In an Order dated September 25, 1986, 4 the trial court denied the Motion filed by the
private respondent. The trial court observed that in ascertaining negligence relating to
a maritime collision, there is a need to rely on highly technical aspects attendant to
such collision, and that the Board of Marine Inquiry was constituted pursuant to the
Philippine Merchant Marine Rules and Regulations, which took effect on January 1,
1975 by virtue of Letter of Instruction No. 208 issued on August 12, 1974 by then
President Ferdinand E. Marcos, precisely to answer the need. The trial court went on
to say that the four-year prescriptive period provided in Article 1146 of the Civil Code
should begin to run only from April 29, 1982, the date when the negligence of the crew
of the M/V Asia Philippines had been finally ascertained. The pertinent portions of the
Order of the trial court are as follows

49

Considering that the action concerns an incident involving a collision at sea of two
vehicles and to determine negligence for that incident there is an absolute need to rely
on highly technical aspects attendant to such collisions. It is obviously to answer such
a need that the Marine Board of Inquiry (Sic) was constituted pursuant to the Philippine
Merchant Marine Rules and Regulations which became effective January 1, 1975
under Letter of Instruction(s) No. 208 dated August 12, 1974. The relevant section of
that law (Art. XVI/b/ provided as follow(s):
1. Board of Marine Inquiry (BMI) Shall have the jurisdiction to investigate marine
accidents or casualties relative to the liability of shipowners and officers, exclusive
jurisdiction to investigate cases/complaints against the marine officers; and to review
all proceedings or investigation conducted by the Special Boards of Marine Inquiry.
2. Special Board of Marine Inquiry. Shall have original jurisdiction to investigate
marine casualties and disasters which occur or are committed within the limits of the
Coast Guard District concerned or those referred by the Commandant.
The Court finds reason in the argument of the plaintiff that marine incidents have those
'peculiarities which only persons of special skill, training and exposure can rightfully
decipher and resolve on the matter of the negligence and liabilities of parties involved
and inasmuch as the report of the Board of Inquiry (sic) admittedly came out only on
April 29, 1982, the prescriptive period provided x x x under Art. 1146 of the Civil Code
should begin to run only from that date. The complaint was filed with this Court on May
10, 1985, hence the statute of limitations can not constitute a bar to the filing of this
case. 5
The private respondent elevated the case to the Court of Appeals by way of a special
civil action for certiorari and prohibition, alleging therein that the trial court committed a
grave abuse of discretion in refusing to dismiss the Complaint filed by the petitioners.
The case was assigned to the Second Division of the appellate court and was
docketed as Case No. CA-G.R. SP No. 12032. 6
In a Decision dated November 27, 1987, 7 and clarified in a Resolution dated January
12, 1988, 8 the Court of Appeals granted the Petition filed by the private respondent
and ordered the trial court to dismiss the Complaint. The pertinent portions of the
Decision of the appellate court are as follows
It is clear that the cause of action of private respondent (the herein petitioners Ernesto
Kramer, Jr. and Marta Kramer) accrued from the occurrence of the mishap because
that is the precise time when damages were inflicted upon and sustained by the
aggrieved party and from which relief from the court is presently sought. Private
respondents should have immediately instituted a complaint for damages based on a
quasi-delict within four years from the said marine incident because its cause of action
had already definitely ripened at the onset of the collision. For this reason, he (sic)
could cite the negligence on the part of the personnel of the petitioner to exercise due
care and lack of (sic) diligence to prevent the collision that resulted in the total loss of
their x x x boat.
We can only extend scant consideration to respondent judge's reasoning that in view of
the nature of the marine collision that allegedly involves highly technical aspects, the
running of the prescriptive period should only commence from the finality of the
investigation conducted by the Marine Board of Inquiry (sic) and the decision of the
Commandant, Philippine Coast Guard, who has original jurisdiction over the mishap.
For one, while it is true that the findings and recommendation of the Board and the
decision of the Commandant may be helpful to the court in ascertaining which of the
parties are at fault, still the former (court) is not bound by said findings and decision.
Indeed, the same findings and decision could be entirely or partially admitted, modified,
amended, or disregarded by the court according to its lights and judicial discretion. For
another, if the accrual of a cause of action will be made to depend on the action to be

50

taken by certain government agencies, then necessarily, the tolling of the prescriptive
period would hinge upon the discretion of such agencies. Said alternative it is easy to
foresee would be fraught with hazards. Their investigations might be delayed and lag
and then witnesses in the meantime might not be available or disappear, or certain
documents may no longer be available or might be mislaid. ... 9
The petitioners filed a Motion for the reconsideration of the said Decision but the same
was denied by the Court of Appeals in a Resolution dated May 27, 1988. 10
Hence, the instant Petition wherein the arguments raised by the petitioner before the
trial court are reiterated. 11 In addition thereto, the petitioner contends that the Decision
of the Court of Appeals 12 The private respondent filed its Comment on the Petition
seeking therein the dismissal of the same. 13 It is also contended by the private
respondent that the ruling of the Court in Vasquez is not applicable to the case at bar
because the said case involves a maritime collision attributable to a fortuitous event. In
a subsequent pleading, the private respondent argues that the Philippine Merchant
Marine Rules and Regulations cannot have the effect of repealing the provisions of the
Civil Code on prescription of actions. 14
On September 19,1988, the Court resolved to give due course to the petition. 15 After
the parties filed their respective memoranda, the case was deemed submitted for
decision.
The petition is devoid of merit. Under Article 1146 of the Civil Code, an action based
upon a quasi-delict must be instituted within four (4) years. The prescriptive period
begins from the day the quasi-delict is committed. In Paulan vs. Sarabia, 16 this Court
ruled that in an action for damages arising from the collision of two (2) trucks, the
action being based on a quasi-delict, the four (4) year prescriptive period must be
counted from the day of the collision.
In Espanol vs. Chairman, Philippine Veterans Administration, 17 this Court held as
followsThe right of action accrues when there exists a cause of action, which consists of 3
elements, namely: a) a right in favor of the plaintiff by whatever means and under
whatever law it arises or is created; b) an obligation on the part of defendant to respect
such right; and c) an act or omission on the part of such defendant violative of the right
of the plaintiff ... It is only when the last element occurs or takes place that it can be
said in law that a cause of action has arisen ... .
From the foregoing ruling, it is clear that the prescriptive period must be counted when
the last element occurs or takes place, that is, the time of the commission of an act or
omission violative of the right of the plaintiff, which is the time when the cause of action
arises.
It is therefore clear that in this action for damages arising from the collision of two (2)
vessels the four (4) year prescriptive period must be counted from the day of the
collision. The aggrieved party need not wait for a determination by an administrative
body like a Board of Marine Inquiry, that the collision was caused by the fault or
negligence of the other party before he can file an action for damages. The ruling in
Vasquez does not apply in this case. Immediately after the collision the aggrieved party
can seek relief from the courts by alleging such negligence or fault of the owners,
agents or personnel of the other vessel.
Thus, the respondent court correctly found that the action of petitioner has prescribed.
The collision occurred on April 8, 1976. The complaint for damages was filed iii court
only on May 30, 1 985, was beyond the four (4) year prescriptive period.
WHEREFORE, the petition is dismissed. No costs.
SO ORDERED.

51

G.R. No. L-30642 April 30, 1985


PERFECTO S. FLORESCA, in his own behalf and on behalf of the minors
ROMULO and NESTOR S. FLORESCA; and ERLINDA FLORESCA-GABUYO,
PEDRO S. FLORESCA, JR., CELSO S. FLORESCA, MELBA S. FLORESCA,
JUDITH S. FLORESCA and CARMEN S. FLORESCA;
LYDIA CARAMAT VDA. DE MARTINEZ in her own behalf and on behalf of her
minor children LINDA, ROMEO, ANTONIO JEAN and ELY, all surnamed Martinez;
and DANIEL MARTINEZ and TOMAS MARTINEZ;
SALUSTIANA ASPIRAS VDA. DE OBRA, in her own behalf and on behalf of her
minor children JOSE, ESTELA, JULITA SALUD and DANILO, all surnamed
OBRA;
LYDIA CULBENGAN VDA. DE VILLAR, in her own behalf and on behalf of her
minor children EDNA, GEORGE and LARRY III, all surnamed VILLAR;
DOLORES LOLITA ADER VDA. DE LANUZA, in her own behalf and on behalf of
her minor children EDITHA, ELIZABETH, DIVINA, RAYMUNDO, NESTOR and
AURELIO, JR. all surnamed LANUZA;
EMERENCIANA JOSE VDA. DE ISLA, in her own behalf and on behalf of her
minor children JOSE, LORENZO, JR., MARIA, VENUS and FELIX, all surnamed
ISLA,
petitioners,
vs.
PHILEX MINING CORPORATION and HON. JESUS P. MORFE, Presiding Judge of
Branch XIII, Court of First Instance of Manila, respondents.
Rodolfo C. Pacampara for petitioners.
Tito M. Villaluna for respondents.
MAKASIAR, J.:
This is a petition to review the order of the former Court of First Instance of Manila,
Branch XIII, dated December 16, 1968 dismissing petitioners' complaint for damages
on the ground of lack of jurisdiction.
Petitioners are the heirs of the deceased employees of Philex Mining Corporation
(hereinafter referred to as Philex), who, while working at its copper mines underground
operations at Tuba, Benguet on June 28, 1967, died as a result of the cave-in that
buried them in the tunnels of the mine. Specifically, the complaint alleges that Philex, in
violation of government rules and regulations, negligently and deliberately failed to take
the required precautions for the protection of the lives of its men working underground.
Portion of the complaint reads:
xxx xxx xxx
9. That for sometime prior and up to June 28,1967, the defendant PHILEX, with gross
and reckless negligence and imprudence and deliberate failure to take the required
precautions for the due protection of the lives of its men working underground at the
time, and in utter violation of the laws and the rules and regulations duly promulgated
by the Government pursuant thereto, allowed great amount of water and mud to
accumulate in an open pit area at the mine above Block 43-S-1 which seeped through
and saturated the 600 ft. column of broken ore and rock below it, thereby exerting
tremendous pressure on the working spaces at its 4300 level, with the result that, on
the said date, at about 4 o'clock in the afternoon, with the collapse of all underground
supports due to such enormous pressure, approximately 500,000 cubic feet of broken
ores rocks, mud and water, accompanied by surface boulders, blasted through the
tunnels and flowed out and filled in, in a matter of approximately five (5) minutes, the
underground workings, ripped timber supports and carried off materials, machines and
equipment which blocked all avenues of exit, thereby trapping within its tunnels of all

52

its men above referred to, including those named in the next preceding paragraph,
represented by the plaintiffs herein;
10. That out of the 48 mine workers who were then working at defendant PHILEX's
mine on the said date, five (5) were able to escape from the terrifying holocaust; 22
were rescued within the next 7 days; and the rest, 21 in number, including those
referred to in paragraph 7 hereinabove, were left mercilessly to their fate,
notwithstanding the fact that up to then, a great many of them were still alive,
entombed in the tunnels of the mine, but were not rescued due to defendant PHILEX's
decision to abandon rescue operations, in utter disregard of its bounden legal and
moral duties in the premises;
xxx xxx xxx
13. That defendant PHILEX not only violated the law and the rules and regulations duly
promulgated by the duly constituted authorities as set out by the Special Committee
above referred to, in their Report of investigation, pages 7-13, Annex 'B' hereof, but
also failed completely to provide its men working underground the necessary security
for the protection of their lives notwithstanding the fact that it had vast financial
resources, it having made, during the year 1966 alone, a total operating income of P
38,220,254.00, or net earnings, after taxes of P19,117,394.00, as per its llth Annual
Report for the year ended December 31, 1966, and with aggregate assets totalling P
45,794,103.00 as of December 31, 1966;
xxx xxx xxx
(pp. 42-44, rec.)
A motion to dismiss dated May 14, 1968 was filed by Philex alleging that the causes of
action of petitioners based on an industrial accident are covered by the provisions of
the Workmen's Compensation Act (Act 3428, as amended by RA 772) and that the
former Court of First Instance has no jurisdiction over the case. Petitioners filed an
opposition dated May 27, 1968 to the said motion to dismiss claiming that the causes
of action are not based on the provisions of the Workmen's Compensation Act but on
the provisions of the Civil Code allowing the award of actual, moral and exemplary
damages, particularly:
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.
Art. 2178. The provisions of articles 1172 to 1174 are also applicable to a quasi-delict.
(b) Art. 1173The fault or negligence of the obligor consists in the omission of that
diligence which is required by the nature of the obligation and corresponds with the
circumstances of the persons, of the time and of the place. When negligence shows
bad faith, the provisions of Articles 1171 and 2201, paragraph 2 shall apply.
Art. 2201. x x x x x x x x x
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible
for all damages which may be reasonably attributed to the non-performance of the
obligation.
Art. 2231. In quasi-delicts, exemplary damages may be granted if the defendant acted
with gross negligence.
After a reply and a rejoinder thereto were filed, respondent Judge issued an order
dated June 27, 1968 dismissing the case on the ground that it falls within the exclusive
jurisdiction of the Workmen's Compensation Commission. On petitioners' motion for
reconsideration of the said order, respondent Judge, on September 23, 1968,
reconsidered and set aside his order of June 27, 1968 and allowed Philex to file an
answer to the complaint. Philex moved to reconsider the aforesaid order which was
opposed by petitioners.

53

On December 16, 1968, respondent Judge dismissed the case for lack of jurisdiction
and ruled that in accordance with the established jurisprudence, the Workmen's
Compensation Commission has exclusive original jurisdiction over damage or
compensation claims for work-connected deaths or injuries of workmen or employees,
irrespective of whether or not the employer was negligent, adding that if the employer's
negligence results in work-connected deaths or injuries, the employer shall, pursuant
to Section 4-A of the Workmen's Compensation Act, pay additional compensation
equal to 50% of the compensation fixed in the Act.
Petitioners thus filed the present petition.
In their brief, petitioners raised the following assignment of errors:
I
THE LOWER COURT ERRED IN DISMISSING THE PLAINTIFFS- PETITIONERS'
COMPLAINT FOR LACK OF JURISDICTION.
II
THE LOWER COURT ERRED IN FAILING TO CONSIDER THE CLEAR
DISTINCTION BETWEEN CLAIMS FOR DAMAGES UNDER THE CIVIL CODE AND
CLAIMS FOR COMPENSATION UNDER THE WORKMEN'S COMPENSATION ACT.
A
In the first assignment of error, petitioners argue that the lower court has jurisdiction
over the cause of action since the complaint is based on the provisions of the Civil
Code on damages, particularly Articles 2176, 2178, 1173, 2201 and 2231, and not on
the provisions of the Workmen's Compensation Act. They point out that the complaint
alleges gross and brazen negligence on the part of Philex in failing to take the
necessary security for the protection of the lives of its employees working
underground. They also assert that since Philex opted to file a motion to dismiss in the
court a quo, the allegations in their complaint including those contained in the annexes
are deemed admitted.
In the second assignment of error, petitioners asseverate that respondent Judge failed
to see the distinction between the claims for compensation under the Workmen's
Compensation Act and the claims for damages based on gross negligence of Philex
under the Civil Code. They point out that workmen's compensation refers to liability for
compensation for loss resulting from injury, disability or death of the working man
through industrial accident or disease, without regard to the fault or negligence of the
employer, while the claim for damages under the Civil Code which petitioners pursued
in the regular court, refers to the employer's liability for reckless and wanton negligence
resulting in the death of the employees and for which the regular court has jurisdiction
to adjudicate the same.
On the other hand, Philex asserts that work-connected injuries are compensable
exclusively under the provisions of Sections 5 and 46 of the Workmen's Compensation
Act, which read:
SEC. 5. Exclusive right to compensation.The rights and remedies granted by this Act
to an employee by reason of a personal injury entitling him to compensation shall
exclude all other rights and remedies accruing to the employee, his personal
representatives, dependents or nearest of kin against the employer under the Civil
Code and other laws because of said injury ...
SEC. 46. Jurisdiction. The Workmen's Compensation Commissioner shall have
exclusive jurisdiction to hear and decide claims for compensation under the Workmen's
Compensation Act, subject to appeal to the Supreme Court, ...
Philex cites the case of Manalo vs. Foster Wheeler (98 Phil. 855 [1956]) where it was
held that "all claims of workmen against their employer for damages due to accident
suffered in the course of employment shall be investigated and adjudicated by the
Workmen's Compensation Commission," subject to appeal to the Supreme Court.

54

Philex maintains that the fact that an employer was negligent, does not remove the
case from the exclusive character of recoveries under the Workmen's Compensation
Act; because Section 4-A of the Act provides an additional compensation in case the
employer fails to comply with the requirements of safety as imposed by law to prevent
accidents. In fact, it points out that Philex voluntarily paid the compensation due the
petitioners and all the payments have been accepted in behalf of the deceased miners,
except the heirs of Nazarito Floresca who insisted that they are entitled to a greater
amount of damages under the Civil Code.
In the hearing of this case, then Undersecretary of Labor Israel Bocobo, then Atty.
Edgardo Angara, now President of the University of the Philippines, Justice Manuel
Lazaro, as corporate counsel and Assistant General Manager of the GSIS Legal Affairs
Department, and Commissioner on Elections, formerly UP Law Center Director Froilan
Bacungan, appeared as amici curiae and thereafter, submitted their respective
memoranda.
The issue to be resolved as WE stated in the resolution of November 26, 1976, is:
Whether the action of an injured employee or worker or that of his heirs in case of his
death under the Workmen's Compensation Act is exclusive, selective or cumulative,
that is to say, whether his or his heirs' action is exclusively restricted to seeking the
limited compensation provided under the Workmen's Compensation Act or whether
they have a right of selection or choice of action between availing of the worker's right
under the Workmen's Compensation Act and suing in the regular courts under the Civil
Code for higher damages (actual, moral and/or exemplary) from the employer by virtue
of negligence (or fault) of the employer or of his other employees or whether they may
avail cumulatively of both actions, i.e., collect the limited compensation under the
Workmen's Compensation Act and sue in addition for damages in the regular courts.
There are divergent opinions in this case. Justice Lazaro is of the opinion that an
injured employee or worker, or the heirs in case of his death, may initiate a complaint
to recover damages (not compensation under the Workmen's Compensation Act) with
the regular court on the basis of negligence of an employer pursuant to the Civil Code
provisions. Atty. Angara believes otherwise. He submits that the remedy of an injured
employee for work-connected injury or accident is exclusive in accordance with Section
5 of the Workmen's Compensation Act, while Atty. Bacungan's position is that the
action is selective. He opines that the heirs of the employee in case of his death have a
right of choice to avail themselves of the benefits provided under the Workmen's
Compensation Act or to sue in the regular court under the Civil Code for higher
damages from the employer by virtue of negligence of the latter. Atty. Bocobo's stand
is the same as that of Atty. Bacungan and adds that once the heirs elect the remedy
provided for under the Act, they are no longer entitled to avail themselves of the
remedy provided for under the Civil Code by filing an action for higher damages in the
regular court, and vice versa.
On August 3, 1978, petitioners-heirs of deceased employee Nazarito Floresca filed a
motion to dismiss on the ground that they have amicably settled their claim with
respondent Philex. In the resolution of September 7, 1978, WE dismissed the petition
only insofar as the aforesaid petitioners are connected, it appearing that there are
other petitioners in this case.
WE hold that the former Court of First Instance has jurisdiction to try the case,
It should be underscored that petitioners' complaint is not for compensation based on
the Workmen's Compensation Act but a complaint for damages (actual, exemplary and
moral) in the total amount of eight hundred twenty-five thousand (P825,000.00) pesos.
Petitioners did not invoke the provisions of the Workmen's Compensation Act to entitle
them to compensation thereunder. In fact, no allegation appeared in the complaint that
the employees died from accident arising out of and in the course of their

55

employments. The complaint instead alleges gross and reckless negligence and
deliberate failure on the part of Philex to protect the lives of its workers as a
consequence of which a cave-in occurred resulting in the death of the employees
working underground. Settled is the rule that in ascertaining whether or not the cause
of action is in the nature of workmen's compensation claim or a claim for damages
pursuant to the provisions of the Civil Code, the test is the averments or allegations in
the complaint (Belandres vs. Lopez Sugar Mill, Co., Inc., 97 Phil. 100).
In the present case, there exists between Philex and the deceased employees a
contractual relationship. The alleged gross and reckless negligence and deliberate
failure that amount to bad faith on the part of Philex, constitute a breach of contract for
which it may be held liable for damages. The provisions of the Civil Code on cases of
breach of contract when there is fraud or bad faith, read:
Art. 2232. In contracts and quasi-contracts, the court may award exemplary damages if
the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent
manner.
Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who
acted in good faith is able shall be those that are the natural and probable
consequences of the breach of the obligation, and which the parties have foreseen or
could have reasonably foreseen at the time the obligation was constituted.
In cases of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible
for all damages which may be reasonably attributed to the non-performance of the
obligation.
Furthermore, Articles 2216 et seq., Civil Code, allow the payment of all kinds of
damages, as assessed by the court.
The rationale in awarding compensation under the Workmen's Compensation Act
differs from that in giving damages under the Civil Code. The compensation acts are
based on a theory of compensation distinct from the existing theories of damages,
payments under the acts being made as compensation and not as damages (99 C.J.S.
53). Compensation is given to mitigate the harshness and insecurity of industrial life for
the workman and his family. Hence, an employer is liable whether negligence exists or
not since liability is created by law. Recovery under the Act is not based on any theory
of actionable wrong on the part of the employer (99 C.J.S. 36).
In other words, under the compensation acts, the employer is liable to pay
compensation benefits for loss of income, as long as the death, sickness or injury is
work-connected or work-aggravated, even if the death or injury is not due to the fault of
the employer (Murillo vs. Mendoza, 66 Phil. 689). On the other hand, damages are
awarded to one as a vindication of the wrongful invasion of his rights. It is the
indemnity recoverable by a person who has sustained injury either in his person,
property or relative rights, through the act or default of another (25 C.J.S. 452).
The claimant for damages under the Civil Code has the burden of proving the causal
relation between the defendant's negligence and the resulting injury as well as the
damages suffered. While under the Workmen's Compensation Act, there is a
presumption in favor of the deceased or injured employee that the death or injury is
work-connected or work-aggravated; and the employer has the burden to prove
otherwise (De los Angeles vs. GSIS, 94 SCRA 308; Carino vs. WCC, 93 SCRA 551;
Maria Cristina Fertilizer Corp. vs. WCC, 60 SCRA 228).
The claim of petitioners that the case is not cognizable by the Workmen's
Compensation Commission then, now Employees Compensation Commission, is
strengthened by the fact that unlike in the Civil Code, the Workmen's Compensation
Act did not contain any provision for an award of actual, moral and exemplary
damages. What the Act provided was merely the right of the heirs to claim limited
compensation for the death in the amount of six thousand (P6,000.00) pesos plus

56

burial expenses of two hundred (P200.00) pesos, and medical expenses when
incurred (Sections 8, 12 and 13, Workmen's Compensation Act), and an additional
compensation of only 50% if the complaint alleges failure on the part of the employer to
"install and maintain safety appliances or to take other precautions for the prevention of
accident or occupational disease" (Section 4-A, Ibid.). In the case at bar, the amount
sought to be recovered is over and above that which was provided under the
Workmen's Compensation Act and which cannot be granted by the Commission.
Moreover, under the Workmen's Compensation Act, compensation benefits should be
paid to an employee who suffered an accident not due to the facilities or lack of
facilities in the industry of his employer but caused by factors outside the industrial
plant of his employer. Under the Civil Code, the liability of the employer, depends on
breach of contract or tort. The Workmen's Compensation Act was specifically enacted
to afford protection to the employees or workmen. It is a social legislation designed to
give relief to the workman who has been the victim of an accident causing his death or
ailment or injury in the pursuit of his employment (Abong vs. WCC, 54 SCRA 379).
WE now come to the query as to whether or not the injured employee or his heirs in
case of death have a right of selection or choice of action between availing themselves
of the worker's right under the Workmen's Compensation Act and suing in the regular
courts under the Civil Code for higher damages (actual, moral and exemplary) from the
employers by virtue of that negligence or fault of the employers or whether they may
avail themselves cumulatively of both actions, i.e., collect the limited compensation
under the Workmen's Compensation Act and sue in addition for damages in the regular
courts.
In disposing of a similar issue, this Court in Pacana vs. Cebu Autobus Company, 32
SCRA 442, ruled that an injured worker has a choice of either to recover from the
employer the fixed amounts set by the Workmen's Compensation Act or to prosecute
an ordinary civil action against the tortfeasor for higher damages but he cannot pursue
both courses of action simultaneously.
In Pacaa WE said:
In the analogous case of Esguerra vs. Munoz Palma, involving the application of
Section 6 of the Workmen's Compensation Act on the injured workers' right to sue
third- party tortfeasors in the regular courts, Mr. Justice J.B.L. Reyes, again speaking
for the Court, pointed out that the injured worker has the choice of remedies but cannot
pursue both courses of action simultaneously and thus balanced the relative
advantage of recourse under the Workmen's Compensation Act as against an ordinary
action.
As applied to this case, petitioner Esguerra cannot maintain his action for damages
against the respondents (defendants below), because he has elected to seek
compensation under the Workmen's Compensation Law, and his claim (case No.
44549 of the Compensation Commission) was being processed at the time he filed this
action in the Court of First Instance. It is argued for petitioner that as the damages
recoverable under the Civil Code are much more extensive than the amounts that may
be awarded under the Workmen's Compensation Act, they should not be deemed
incompatible. As already indicated, the injured laborer was initially free to choose either
to recover from the employer the fixed amounts set by the Compensation Law or else,
to prosecute an ordinary civil action against the tortfeasor for higher damages. While
perhaps not as profitable, the smaller indemnity obtainable by the first course is
balanced by the claimant's being relieved of the burden of proving the causal
connection between the defendant's negligence and the resulting injury, and of having
to establish the extent of the damage suffered; issues that are apt to be troublesome to
establish satisfactorily. Having staked his fortunes on a particular remedy, petitioner is
precluded from pursuing the alternate course, at least until the prior claim is rejected by

57

the Compensation Commission. Anyway, under the proviso of Section 6 aforequoted, if


the employer Franklin Baker Company recovers, by derivative action against the
alleged tortfeasors, a sum greater than the compensation he may have paid the herein
petitioner, the excess accrues to the latter.
Although the doctrine in the case of Esguerra vs. Munoz Palma (104 Phil. 582), applies
to third-party tortfeasor, said rule should likewise apply to the employer-tortfeasor.
Insofar as the heirs of Nazarito Floresca are concerned, as already stated, the petition
has been dismissed in the resolution of September 7, 1978 in view of the amicable
settlement reached by Philex and the said heirs.
With regard to the other petitioners, it was alleged by Philex in its motion to dismiss
dated May 14, 1968 before the court a quo, that the heirs of the deceased employees,
namely Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino
Martinez submitted notices and claims for compensation to the Regional Office No. 1
of the then Department of Labor and all of them have been paid in full as of August 25,
1967, except Saturnino Martinez whose heirs decided that they be paid in installments
(pp. 106-107, rec.). Such allegation was admitted by herein petitioners in their
opposition to the motion to dismiss dated May 27, 1968 (pp. 121-122, rec.) in the lower
court, but they set up the defense that the claims were filed under the Workmen's
Compensation Act before they learned of the official report of the committee created to
investigate the accident which established the criminal negligence and violation of law
by Philex, and which report was forwarded by the Director of Mines to the then
Executive Secretary Rafael Salas in a letter dated October 19, 1967 only (p. 76, rec.).
WE hold that although the other petitioners had received the benefits under the
Workmen's Compensation Act, such may not preclude them from bringing an action
before the regular court because they became cognizant of the fact that Philex has
been remiss in its contractual obligations with the deceased miners only after receiving
compensation under the Act. Had petitioners been aware of said violation of
government rules and regulations by Philex, and of its negligence, they would not have
sought redress under the Workmen's Compensation Commission which awarded a
lesser amount for compensation. The choice of the first remedy was based on
ignorance or a mistake of fact, which nullifies the choice as it was not an intelligent
choice. The case should therefore be remanded to the lower court for further
proceedings. However, should the petitioners be successful in their bid before the
lower court, the payments made under the Workmen's Compensation Act should be
deducted from the damages that may be decreed in their favor.
B
Contrary to the perception of the dissenting opinion, the Court does not legislate in the
instant case. The Court merely applies and gives effect to the constitutional guarantees
of social justice then secured by Section 5 of Article 11 and Section 6 of Article XIV of
the 1935 Constitution, and now by Sections 6, 7, and 9 of Article 11 of the
DECLARATION OF PRINCIPLES AND STATE POLICIES of the 1973 Constitution, as
amended, and as implemented by Articles 2176, 2177, 2178, 1173, 2201, 2216, 2231
and 2232 of the New Civil Code of 1950.
To emphasize, the 1935 Constitution declares that:
Sec. 5. The promotion of social justice to insure the well-being and economic security
of all the people should be the concern of the State (Art. II).
Sec. 6. The State shall afford protection to labor, especially to working women, and
minors, and shall regulate the relations between landowner and tenant, and between
labor and capital in industry and in agriculture. The State may provide for compulsory
arbitration (Art. XIV).
The 1973 Constitution likewise commands the State to "promote social justice to insure
the dignity, welfare, and security of all the people "... regulate the use ... and

58

disposition of private property and equitably diffuse property ownership and profits
"establish, maintain and ensure adequate social services in, the field of education,
health, housing, employment, welfare and social security to guarantee the enjoyment
by the people of a decent standard of living" (Sections 6 and 7, Art. II, 1973
Constitution); "... afford protection to labor, ... and regulate the relations between
workers and employers ..., and assure the rights of workers to ... just and humane
conditions of work" (Sec. 9, Art. II, 1973 Constitution, emphasis supplied).
The foregoing constitutional guarantees in favor of labor institutionalized in Section 9 of
Article 11 of the 1973 Constitution and re-stated as a declaration of basic policy in
Article 3 of the New Labor Code, thus:
Art. 3. Declaration of basic policy.The State shall afford protection to labor, promote
full employment, ensure equal work opportunities regardless of sex, race or creed, and
regulate the relations between workers and employers. The State shall assure the
rights of workers to self-organization, collective bargaining, security of tenure, and just
and humane conditions of work. (emphasis supplied).
The aforestated constitutional principles as implemented by the aforementioned
articles of the New Civil Code cannot be impliedly repealed by the restrictive provisions
of Article 173 of the New Labor Code. Section 5 of the Workmen's Compensation Act
(before it was amended by R.A. No. 772 on June 20, 1952), predecessor of Article 173
of the New Labor Code, has been superseded by the aforestated provisions of the
New Civil Code, a subsequent law, which took effect on August 30, 1950, which obey
the constitutional mandates of social justice enhancing as they do the rights of the
workers as against their employers. Article 173 of the New Labor Code seems to
diminish the rights of the workers and therefore collides with the social justice
guarantee of the Constitution and the liberal provisions of the New Civil Code.
The guarantees of social justice embodied in Sections 6, 7 and 9 of Article II of the
1973 Constitution are statements of legal principles to be applied and enforced by the
courts. Mr. Justice Robert Jackson in the case of West Virginia State Board of
Education vs. Barnette, with characteristic eloquence, enunciated:
The very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of majorities and
officials and to establish them as legal principles to be applied by the courts. One's
right to life, liberty, and property, to free speech, a free press, freedom of worship and
assembly, and other fundamental rights may not be submitted to vote; they depend on
the outcome of no elections (319 U.S. 625, 638, 87 L.ed. 1638, emphasis supplied).
In case of any doubt which may be engendered by Article 173 of the New Labor Code,
both the New Labor Code and the Civil Code direct that the doubts should be resolved
in favor of the workers and employees.
Thus, Article 4 of the New Labor Code, otherwise known as Presidential Decree No.
442, as amended, promulgated on May 1, 1974, but which took effect six months
thereafter, provides that "all doubts in the implementation and interpretation of the
provisions of this Code, including its implementing rules and regulations, shall be
resolved in favor of labor" (Art. 2, Labor Code).
Article 10 of the New Civil Code states: "In case of doubt in the interpretation or
application of laws, it is presumed that the law-making body intended right and justice
to prevail. "
More specifically, Article 1702 of the New Civil Code likewise directs that. "In case of
doubt, all labor legislation and all labor contracts shall be construed in favor of the
safety and decent living of the laborer."
Before it was amended by Commonwealth Act No. 772 on June 20, 1952, Section 5 of
the Workmen's Compensation Act provided:

59

Sec. 5. Exclusive right to compensation.- The rights and remedies granted by this Act
to an employee by reason of a personal injury entitling him to compensation shall
exclude all other rights and remedies accruing to the employee, his personal
representatives, dependents or nearest of kin against the employer under the Civil
Code and other laws, because of said injury (emphasis supplied).
Employers contracting laborecsrs in the Philippine Islands for work outside the same
may stipulate with such laborers that the remedies prescribed by this Act shall apply
exclusively to injuries received outside the Islands through accidents happening in and
during the performance of the duties of the employment; and all service contracts
made in the manner prescribed in this section shall be presumed to include such
agreement.
Only the second paragraph of Section 5 of the Workmen's Compensation Act No.
3428, was amended by Commonwealth Act No. 772 on June 20, 1952, thus:
Sec. 5. Exclusive right to compensation.- The rights and remedies granted by this Act
to an employee by reason of a personal injury entitling him to compensation shall
exclude all other rights and remedies accruing to the employee, his personal
representatives, dependents or nearest of kin against the employer under the Civil
Code and other laws, because of said injury.
Employers contracting laborers in the Philippine Islands for work outside the same
shall stipulate with such laborers that the remedies prescribed by this Act shall apply to
injuries received outside the Island through accidents happening in and during the
performance of the duties of the employment. Such stipulation shall not prejudice the
right of the laborers to the benefits of the Workmen's Compensation Law of the place
where the accident occurs, should such law be more favorable to them (As amended
by section 5 of Republic Act No. 772).
Article 173 of the New Labor Code does not repeal expressly nor impliedly the
applicable provisions of the New Civil Code, because said Article 173 provides:
Art. 173. Exclusiveness of liability.- Unless otherwise provided, the liability of the State
Insurance Fund under this Title shall be exclusive and in place of all other liabilities of
the employer to the employee, his dependents or anyone otherwise entitled to receive
damages on behalf of the employee or his dependents. The payment of compensation
under this Title shall bar the recovery of benefits as provided for in Section 699 of the
Revised Administrative Code, Republic Act Numbered Eleven hundred sixty-one, as
amended, Commonwealth Act Numbered One hundred eighty- six, as amended,
Commonwealth Act Numbered Six hundred ten, as amended, Republic Act Numbered
Forty-eight hundred Sixty-four, as amended, and other laws whose benefits are
administered by the System during the period of such payment for the same disability
or death, and conversely (emphasis supplied).
As above-quoted, Article 173 of the New Labor Code expressly repealed only Section
699 of the Revised Administrative Code, R.A. No. 1161, as amended, C.A. No. 186, as
amended, R.A. No. 610, as amended, R.A. No. 4864, as amended, and all other laws
whose benefits are administered by the System (referring to the GSIS or SSS).
Unlike Section 5 of the Workmen's Compensation Act as aforequoted, Article 173 of
the New Labor Code does not even remotely, much less expressly, repeal the New
Civil Code provisions heretofore quoted.
It is patent, therefore, that recovery under the New Civil Code for damages arising from
negligence, is not barred by Article 173 of the New Labor Code. And the damages
recoverable under the New Civil Code are not administered by the System provided for
by the New Labor Code, which defines the "System" as referring to the Government
Service Insurance System or the Social Security System (Art. 167 [c], [d] and [e] of the
New Labor Code).

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Furthermore, under Article 8 of the New Civil Code, decisions of the Supreme Court
form part of the law of the land.
Article 8 of the New Civil Code provides:
Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form
a part of the legal system of the Philippines.
The Court, through the late Chief Justice Fred Ruiz Castro, in People vs. Licera ruled:
Article 8 of the Civil Code of the Philippines decrees that judicial decisions applying or
interpreting the laws or the Constitution form part of this jurisdiction's legal system.
These decisions, although in themselves not laws, constitute evidence of what the laws
mean. The application or interpretation placed by the Court upon a law is part of the
law as of the date of the enactment of the said law since the Court's application or
interpretation merely establishes the contemporaneous legislative intent that the
construed law purports to carry into effect" (65 SCRA 270, 272-273 [1975]).
WE ruled that judicial decisions of the Supreme Court assume the same authority as
the statute itself (Caltex vs. Palomer, 18 SCRA 247; 124 Phil. 763).
The aforequoted provisions of Section 5 of the Workmen's Compensation Act, before
and after it was amended by Commonwealth Act No. 772 on June 20, 1952, limited the
right of recovery in favor of the deceased, ailing or injured employee to the
compensation provided for therein. Said Section 5 was not accorded controlling
application by the Supreme Court in the 1970 case of Pacana vs. Cebu Autobus
Company (32 SCRA 442) when WE ruled that an injured worker has a choice of either
to recover from the employer the fixed amount set by the Workmen's Compensation
Act or to prosecute an ordinary civil action against the tortfeasor for greater damages;
but he cannot pursue both courses of action simultaneously. Said Pacana case
penned by Mr. Justice Teehankee, applied Article 1711 of the Civil Code as against the
Workmen's Compensation Act, reiterating the 1969 ruling in the case of Valencia vs.
Manila Yacht Club (28 SCRA 724, June 30,1969) and the 1958 case of Esguerra vs.
Munoz Palma (104 Phil. 582), both penned by Justice J.B.L. Reyes. Said Pacana case
was concurred in by Justices J.B.L. Reyes, Dizon, Makalintal, Zaldivar, Castro,
Fernando and Villamor.
Since the first sentence of Article 173 of the New Labor Code is merely a re-statement
of the first paragraph of Section 5 of the Workmen's Compensation Act, as amended,
and does not even refer, neither expressly nor impliedly, to the Civil Code as Section 5
of the Workmen's Compensation Act did, with greater reason said Article 173 must be
subject to the same interpretation adopted in the cases of Pacana, Valencia and
Esguerra aforementioned as the doctrine in the aforesaid three (3) cases is faithful to
and advances the social justice guarantees enshrined in both the 1935 and 1973
Constitutions.
It should be stressed likewise that there is no similar provision on social justice in the
American Federal Constitution, nor in the various state constitutions of the American
Union. Consequently, the restrictive nature of the American decisions on the
Workmen's Compensation Act cannot limit the range and compass of OUR
interpretation of our own laws, especially Article 1711 of the New Civil Code, vis-a-vis
Article 173 of the New Labor Code, in relation to Section 5 of Article II and Section 6 of
Article XIV of the 1935 Constitution then, and now Sections 6, 7 and 9 of the
Declaration of Principles and State Policies of Article II of the 1973 Constitution.
The dissent seems to subordinate the life of the laborer to the property rights of the
employer. The right to life is guaranteed specifically by the due process clause of the
Constitution. To relieve the employer from liability for the death of his workers arising
from his gross or wanton fault or failure to provide safety devices for the protection of
his employees or workers against the dangers which are inherent in underground
mining, is to deprive the deceased worker and his heirs of the right to recover

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indemnity for the loss of the life of the worker and the consequent loss to his family
without due process of law. The dissent in effect condones and therefore encourages
such gross or wanton neglect on the part of the employer to comply with his legal
obligation to provide safety measures for the protection of the life, limb and health of
his worker. Even from the moral viewpoint alone, such attitude is un-Christian.
It is therefore patent that giving effect to the social justice guarantees of the
Constitution, as implemented by the provisions of the New Civil Code, is not an
exercise of the power of law-making, but is rendering obedience to the mandates of the
fundamental law and the implementing legislation aforementioned.
The Court, to repeat, is not legislating in the instant case.
It is axiomatic that no ordinary statute can override a constitutional provision.
The words of Section 5 of the Workmen's Compensation Act and of Article 173 of the
New Labor Code subvert the rights of the petitioners as surviving heirs of the deceased
mining employees. Section 5 of the Workmen's Compensation Act and Article 173 of
the New Labor Code are retrogressive; because they are a throwback to the obsolete
laissez-faire doctrine of Adam Smith enunciated in 1776 in his treatise Wealth of
Nations (Collier's Encyclopedia, Vol. 21, p. 93, 1964), which has been discarded soon
after the close of the 18th century due to the Industrial Revolution that generated the
machines and other mechanical devices (beginning with Eli Whitney's cotton gin of
1793 and Robert Fulton's steamboat of 1807) for production and transportation which
are dangerous to life, limb and health. The old socio-political-economic philosophy of
live-and-let-live is now superdesed by the benign Christian shibboleth of live-and-help
others to live. Those who profess to be Christians should not adhere to Cain's selfish
affirmation that he is not his brother's keeper. In this our civilization, each one of us is
our brother's keeper. No man is an island. To assert otherwise is to be as atavistic and
ante-deluvian as the 1837 case of Prisley vs. Fowler (3 MN 1,150 reprint 1030)
invoked by the dissent, The Prisley case was decided in 1837 during the era of
economic royalists and robber barons of America. Only ruthless, unfeeling capitalistics
and egoistic reactionaries continue to pay obeisance to such un-Christian doctrine. The
Prisley rule humiliates man and debases him; because the decision derisively refers to
the lowly worker as "servant" and utilizes with aristocratic arrogance "master" for
"employer." It robs man of his inherent dignity and dehumanizes him. To stress this
affront to human dignity, WE only have to restate the quotation from Prisley, thus: "The
mere relation of the master and the servant never can imply an obligation on the part of
the master to take more care of the servant than he may reasonably be expected to do
himself." This is the very selfish doctrine that provoked the American Civil War which
generated so much hatred and drew so much precious blood on American plains and
valleys from 1861 to 1864.
"Idolatrous reverence" for the letter of the law sacrifices the human being. The spirit of
the law insures man's survival and ennobles him. In the words of Shakespeare, "the
letter of the law killeth; its spirit giveth life."
C
It is curious that the dissenting opinion clings to the myth that the courts cannot
legislate.
That myth had been exploded by Article 9 of the New Civil Code, which provides that
"No judge or court shall decline to render judgment by reason of the silence, obscurity
or insufficiency of the laws. "
Hence, even the legislator himself, through Article 9 of the New Civil Code, recognizes
that in certain instances, the court, in the language of Justice Holmes, "do and must
legislate" to fill in the gaps in the law; because the mind of the legislator, like all human
beings, is finite and therefore cannot envisage all possible cases to which the law may
apply Nor has the human mind the infinite capacity to anticipate all situations.

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But about two centuries before Article 9 of the New Civil Code, the founding fathers of
the American Constitution foresaw and recognized the eventuality that the courts may
have to legislate to supply the omissions or to clarify the ambiguities in the American
Constitution and the statutes.
'Thus, Alexander Hamilton pragmatically admits that judicial legislation may be justified
but denies that the power of the Judiciary to nullify statutes may give rise to Judicial
tyranny (The Federalist, Modern Library, pp. 503-511, 1937 ed.). Thomas Jefferson
went farther to concede that the court is even independent of the Nation itself (A.F.L.
vs. American Sash Company, 1949 335 US 538).
Many of the great expounders of the American Constitution likewise share the same
view. Chief Justice Marshall pronounced: "It is emphatically the province and duty of
the Judicial department to say what the law is (Marbury vs. Madison I Cranch 127
1803), which was re-stated by Chief Justice Hughes when he said that "the
Constitution is what the judge says it is (Address on May 3, 1907, quoted by President
Franklin Delano Roosevelt on March 9, 1937). This was reiterated by Justice Cardozo
who pronounced that "No doubt the limits for the judge are narrower. He legislates only
between gaps. He fills the open spaces in the law. " (The Nature of the Judicial
Process, p. 113). In the language of Chief Justice Harlan F. Stone, "The only limit to
the judicial legislation is the restraint of the judge" (U.S. vs. Butler 297 U.S. 1
Dissenting Opinion, p. 79), which view is also entertained by Justice Frankfurter and
Justice Robert Jackson. In the rhetoric of Justice Frankfurter, "the courts breathe life,
feeble or strong, into the inert pages of the Constitution and all statute books."
It should be stressed that the liability of the employer under Section 5 of the
Workmen's Compensation Act or Article 173 of the New Labor Code is limited to death,
ailment or injury caused by the nature of the work, without any fault on the part of the
employers. It is correctly termed no fault liability. Section 5 of the Workmen's
Compensation Act, as amended, or Article 173 of the New Labor Code, does not cover
the tortious liability of the employer occasioned by his fault or culpable negligence in
failing to provide the safety devices required by the law for the protection of the life,
limb and health of the workers. Under either Section 5 or Article 173, the employer
remains liable to pay compensation benefits to the employee whose death, ailment or
injury is work-connected, even if the employer has faithfully and diligently furnished all
the safety measures and contrivances decreed by the law to protect the employee.
The written word is no longer the "sovereign talisman." In the epigrammatic language
of Mr. Justice Cardozo, "the law has outgrown its primitive stage of formalism when the
precise word was the sovereign talisman, and every slip was fatal" (Wood vs. Duff
Gordon 222 NW 88; Cardozo, The Nature of the Judicial Process 100). Justice
Cardozo warned that: "Sometimes the conservatism of judges has threatened for an
interval to rob the legislation of its efficacy. ... Precedents established in those items
exert an unhappy influence even now" (citing Pound, Common Law and Legislation 21
Harvard Law Review 383, 387).
Finally, Justice Holmes delivered the coup de grace when he pragmatically admitted,
although with a cautionary undertone: "that judges do and must legislate, but they can
do so only interstitially they are confined from molar to molecular motions" (Southern
Pacific Company vs. Jensen, 244 US 204 1917). And in the subsequent case of
Springer vs. Government (277 US 188, 210-212, 72 L.ed. 845, 852- 853), Justice
Holmes pronounced:
The great ordinances of the Constitution do not establish and divide fields of black and
white. Even the more specific of them are found to terminate in a penumbra shading
gradually from one extreme to the other. x x x. When we come to the fundamental
distinctions it is still more obvious that they must be received with a certain latitude or
our government could not go on.

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To make a rule of conduct applicable to an individual who but for such action would be
free from it is to legislate yet it is what the judges do whenever they determine which of
two competing principles of policy shall prevail.
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by veiling
words we do not and cannot carry out the distinction between legislative and executive
action with mathematical precision and divide the branches into waterlight
compartments, were it ever so desirable to do so, which I am far from believing that it
is, or that the Constitution requires.
True, there are jurists and legal writers who affirm that judges should not legislate, but
grudgingly concede that in certain cases judges do legislate. They criticize the
assumption by the courts of such law-making power as dangerous for it may
degenerate into Judicial tyranny. They include Blackstone, Jeremy Bentham, Justice
Black, Justice Harlan, Justice Roberts, Justice David Brewer, Ronald Dworkin, Rolf
Sartorious, Macklin Fleming and Beryl Harold Levy. But said Justices, jurists or legal
commentators, who either deny the power of the courts to legislate in-between gaps of
the law, or decry the exercise of such power, have not pointed to examples of the
exercise by the courts of such law-making authority in the interpretation and application
of the laws in specific cases that gave rise to judicial tyranny or oppression or that such
judicial legislation has not protected public interest or individual welfare, particularly the
lowly workers or the underprivileged.
On the other hand, there are numerous decisions interpreting the Bill of Rights and
statutory enactments expanding the scope of such provisions to protect human rights.
Foremost among them is the doctrine in the cases of Miranda vs. Arizona (384 US 436
1964), Gideon vs. Wainright (372 US 335), Escubedo vs. Illinois (378 US 478), which
guaranteed the accused under custodial investigation his rights to remain silent and to
counsel and to be informed of such rights as even as it protects him against the use of
force or intimidation to extort confession from him. These rights are not found in the
American Bill of Rights. These rights are now institutionalized in Section 20, Article IV
of the 1973 Constitution. Only the peace-and-order adherents were critical of the
activism of the American Supreme Court led by Chief Justice Earl Warren.
Even the definition of Identical offenses for purposes of the double jeopardy provision
was developed by American judicial decisions, not by amendment to the Bill of Rights
on double jeopardy (see Justice Laurel in People vs. Tarok, 73 Phil. 260, 261-268).
And these judicial decisions have been re-stated in Section 7 of Rule 117 of the 1985
Rules on Criminal Procedure, as well as in Section 9 of Rule 117 of the 1964 Revised
Rules of Court. In both provisions, the second offense is the same as the first offense if
the second offense is an attempt to commit the first or frustration thereof or necessarily
includes or is necessarily included in the first offense.
The requisites of double jeopardy are not spelled out in the Bill of Rights. They were
also developed by judicial decisions in the United States and in the Philippines even
before people vs. Ylagan (58 Phil. 851-853).
Again, the equal protection clause was interpreted in the case of Plessy vs. Ferguson
(163 US 537) as securing to the Negroes equal but separate facilities, which doctrine
was revoked in the case of Brown vs. Maryland Board of Education (349 US 294),
holding that the equal protection clause means that the Negroes are entitled to attend
the same schools attended by the whites-equal facilities in the same school-which was
extended to public parks and public buses.
De-segregation, not segregation, is now the governing principle.
Among other examples, the due process clause was interpreted in the case of People
vs. Pomar (46 Phil. 440) by a conservative, capitalistic court to invalidate a law

64

granting maternity leave to working women-according primacy to property rights over


human rights. The case of People vs. Pomar is no longer the rule.
As early as 1904, in the case of Lochner vs. New York (198 US 45, 76, 49 L. ed. 937,
949), Justice Holmes had been railing against the conservatism of Judges perverting
the guarantee of due process to protect property rights as against human rights or
social justice for the working man. The law fixing maximum hours of labor was
invalidated. Justice Holmes was vindicated finally in 1936 in the case of West Coast
Hotel vs. Parish (300 US 377-79; 81 L. ed. 703) where the American Supreme Court
upheld the rights of workers to social justice in the form of guaranteed minimum wage
for women and minors, working hours not exceeding eight (8) daily, and maternity
leave for women employees.
The power of judicial review and the principle of separation of powers as well as the
rule on political questions have been evolved and grafted into the American
Constitution by judicial decisions (Marbury vs. Madison, supra Coleman vs. Miller, 307
US 433, 83 L. ed. 1385; Springer vs. Government, 277 US 210-212, 72 L. ed. 852,
853).
It is noteworthy that Justice Black, who seems to be against judicial legislation, penned
a separate concurring opinion in the case of Coleman vs. Miller, supra, affirming the
doctrine of political question as beyond the ambit of judicial review. There is nothing in
both the American and Philippine Constitutions expressly providing that the power of
the courts is limited by the principle of separation of powers and the doctrine on
political questions. There are numerous cases in Philippine jurisprudence applying the
doctrines of separation of powers and political questions and invoking American
precedents.
Unlike the American Constitution, both the 1935 and 1973 Philippine Constitutions
expressly vest in the Supreme Court the power to review the validity or constitutionality
of any legislative enactment or executive act.
WHEREFORE, THE TRIAL COURT'S ORDER OF DISMISSAL IS HEREBY
REVERSED AND SET ASIDE AND THE CASE IS REMANDED TO IT FOR FURTHER
PROCEEDINGS. SHOULD A GREATER AMOUNT OF DAMAGES BE DECREED IN
FAVOR OF HEREIN PETITIONERS, THE PAYMENTS ALREADY MADE TO THEM
PURSUANT TO THE WORKMEN'S COMPENSATION ACT SHALL BE DEDUCTED.
NO COSTS.
SO ORDERED.

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