Layugan vs.

IAC; Torts- vicarious liability of owner of a truck Issue:

7/15/2013 0 Comments Whether or not Isidro is liable as employer of Serrano.

G.R. No. 73998 November 14, 1988 Ruling:

Yes!

Facts:

Pedro T. Layugan filed an action for damages against Godofredo Isidro, alleging that while
at Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a companion were repairing the tire
of their cargo truck which was parked along the right side of the National Highway; that
defendant's truck, driven recklessly by Daniel Serrano bumped the plaintiff, that as a result,
plaintiff was injured and hospitalized where he incurred and will incur more expenses as he
recuperates from said injuries; Plaintiff's right leg was amputated and that because of said
injuries he would be deprived of a lifetime income.
The SC held that the CA erroneously appreciated the evidence. It was proven that the
petitioner placed a warning sign within 3 to 4 meters from their truck in the form of a
lighted kerosene lamp. The existence of this warning sings was corroborated by Serrano,
respondent's driver, and further stated that when he saw a parked truck, he kept on
stepping on the brake pedal but it did not function. Thus despite this warning signs, the
truck recklessly driven by Serrano and owned by Respondent Isidro bumped the truck of
petitioner.

To free themselves from liability, defendants Isidro [owner] and Serrano [driver] averred
that he knows his responsibilities as a driver and further contends that it was the negligence
The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph 5, of the
of plaintiff that was the proximate cause of the accident. They alleged that plaintiff parked
Civil Code. In the latter, when an injury is caused by the negligence of a servant or
his truck in a manner which occupied a part of the highway and he did not even put a
employee there instantly arises a presumption of law that there was negligence on the part
warning sign.
of the master or employer either in the selection of the servant or employee, or in
supervision over him after selection, or both. Such presumption is juris tantum and not juris
et de jure and consequently, may be rebutted. If follows necessarily that if the employer
Subsequently, a third-party complaint was filed by the defendant against his insurer, the
shows to the satisfaction of the court that in the selection and in the supervision he has
Travellers Multi Indemnity Corporation; that the third-party plaintiff [Isidro], without
exercised the care and diligence of a good father of a family, the presumption is overcome
admitting his liability to the plaintiff, claimed that the third-party defendant [Travellers] is
and he is relieved from liability. In disclaiming liability for the incident, the private
liable to the former for contribution, indemnity and subrogation by virtue of their insurance
respondent stresses that the negligence of his employee has already been adequately
contract which covers the insurer's liability for damages arising from death, bodily injuries
overcome by his driver's statement that he knew his responsibilities as a driver and that the
and damage to property. The Insurance company argued that it is only liable for the
truck owner used to instruct him to be careful in driving.
amount agreed in the policy and the complaint was premature since no claim was made to
it.

We do not agree with the private respondent in his submission. In the first place, it is clear
that the driver did not know his responsibilities because he apparently did not check his
The RTC ruled in favor of the Petitioners. The CA reversed the decision, stating that it is
vehicle before he took it on the road. If he did he could have discovered earlier that the
the petitioners who were negligent since they did not exercise caution by putting warning
brake fluid pipe on the right was cut, and could have repaired it and thus the accident could
signs that their truck is park on the shoulder of the highway.
have been avoided. Moveover, to our mind, the fact that the private respondent used to
intruct his driver to be careful in his driving, that the driver was licensed, and the fact that
he had no record of any accident, as found by the respondent court, are not sufficient to
destroy the finding of negligence of the Regional Trial Court given the facts established at
the trial. The private respondent or his mechanic, who must be competent, should have
conducted a thorough inspection of his vehicle before allowing his driver to drive it.
In the light of the circumstances obtaining in the case, we hold that Isidro failed to prove
that the diligence of a good father of a family in the supervision of his employees which
would exculpate him from solidary liability with his driver to the petitioner. But even if we
concede that the diligence of a good father of a family was observed by Isidro in the
supervision of his driver, there is not an iota of evidence on record of the observance by
Isidro of the same quantum of diligence in the supervision of his mechanic, if any, who
would be directly in charge in maintaining the road worthiness of his (Isidro's) truck. But
that is not all. There is paucity of proof that Isidro exercised the diligence of a good father of
a family in the selection of his driver, Daniel Serrano, as well as in the selection of his
mechanic, if any, in order to insure the safe operation of his truck and thus prevent damage
to others. Accordingly, the responsibility of Isidro as employer treated in Article 2180,
paragraph 5, of the Civil Code has not ceased.
G.R. No. 137873 April 20, 2001
D. M. CONSUNJI, INC., petitioner,
vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.
KAPUNAN, J.:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M.
Consunji, Inc., fell 14 floors from the Renaissance Tower, Pasig City to his death.
PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a
report dated November 25, 1990, stating that:
x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where
he was pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at
around 2:15 p.m. of the same date.
Investigation disclosed that at the given time, date and place, while victim Jose A. Juego
together with Jessie Jaluag and Delso Destajo [were] performing their work as carpenter[s]
at the elevator core of the 14th floor of the Tower D, Renaissance Tower Building on board
a [p]latform made of channel beam (steel) measuring 4.8 meters by 2 meters wide with
pinulid plywood flooring and cable wires attached to its four corners and hooked at the 5
ton chain block, when suddenly, the bolt or pin which was merely inserted to connect the
chain block with the [p]latform, got loose xxx causing the whole [p]latform assembly and
the victim to fall down to the basement of the elevator core, Tower D of the building under
construction thereby crushing the victim of death, save his two (2) companions who luckily
jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then
on board and performing work, fell. And the falling of the [p]latform was due to the
removal or getting loose of the pin which was merely inserted to the connecting points of
the chain block and [p]latform but without a safety lock.1
On May 9, 1991, Jose Juego’s widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a
complaint for damages against the deceased’s employer, D.M. Consunji, Inc. The employer
raised, among other defenses, the widow’s prior availment of the benefits from the State
Insurance Fund.
After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive
portion of the RTC decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:

1. P50,000.00 for the death of Jose A. Juego.
2. P10,000.00 as actual and compensatory damages.
3. P464,000.00 for the loss of Jose A. Juego’s earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorney’s fees, plus the costs of suit.
SO ORDERED.2
On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in
toto.
D. M. Consunji now seeks the reversal of the CA decision on the following grounds:
THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS ADMISSIBLE
EVIDENCE OF THE ALLEGED NEGLIGENCE OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA LOQUITOR
[sic] IS APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED NEGLIGENT
UNDER ARTICLE 2180 OF THE CIVIL CODE, AND
THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT PRECLUDED FROM
RECOVERING DAMAGES UNDER THE CIVIL CODE.3
Petitioner maintains that the police report reproduced above is hearsay and, therefore,
inadmissible. The CA ruled otherwise. It held that said report, being an entry in official
records, is an exception to the hearsay rule.
The Rules of Court provide that a witness can testify only to those facts which he knows of
his personal knowledge, that is, which are derived from his perception.4 A witness,
therefore, may not testify as what he merely learned from others either because he was
told or read or heard the same. Such testimony is considered hearsay and may not be
received as proof of the truth of what he has learned.5 This is known as the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule that excludes
hearsay as evidence applies to written, as well as oral statements.6
The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources
of error and untrustworthiness, which lie underneath the bare untested assertion of a
witness, may be best brought to light and exposed by the test of cross-examiantion.7 The
hearsay rule, therefore, excludes evidence that cannot be tested by cross-examination.8
The Rules of Court allow several exceptions to the rule,9 among which are entries in official
records. Section 44, Rule 130 provides:
Entries in official records made in the performance of his duty made in the performance of
his duty by a public officer of the Philippines, or by a person in the performance of a duty
specially enjoined by law are prima facie evidence of the facts therein stated.
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice
Moran, enumerated the requisites for admissibility under the above rule:
(a) that the entry was made by a public officer or by another person specially enjoined by
law to do so;

(b) that it was made by the public officer in the performance of his duties, or by such other
person in the performance of a duty specially enjoined by law; and
(c) that the public officer or other person had sufficient knowledge of the facts by him
stated, which must have been acquired by him personally or through official information.
The CA held that the police report meets all these requisites. Petitioner contends that the
last requisite is not present.
The Court notes that PO3 Villanueva, who signed the report in question, also testified
before the trial court. In Rodriguez vs. Court of Appeals,11 which involved a Fire
Investigation Report, the officer who signed the fire report also testified before the trial
court. This Court held that the report was inadmissible for the purpose of proving the truth
of the statements contained in the report but admissible insofar as it constitutes part of the
testimony of the officer who executed the report.
x x x. Since Major Enriquez himself took the witness stand and was available for
cross-examination, the portions of the report which were of his personal knowledge or
which consisted of his perceptions and conclusions were not hearsay. The rest of the report,
such as the summary of the statements of the parties based on their sworn statements
(which were annexed to the Report) as well as the latter, having been included in the first
purpose of the offer [as part of the testimony of Major Enriquez], may then be considered
as independently relevant statements which were gathered in the course of the
investigation and may thus be admitted as such, but not necessarily to prove the truth
thereof. It has been said that:
"Where regardless of the truth or 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."
When Major Enriquez took the witness stand, testified for petitioners on his Report and
made himself available for cross-examination by the adverse party, the Report, insofar as it
proved that certain utterances were made (but not their truth), was effectively removed
from the ambit of the aforementioned Section 44 of Rule 130. Properly understood, this
section does away with the testimony in open court of the officer who made the official
record, considers the matter as an exception to the hearsay rule and makes the entries in
said official record admissible in evidence as prima facie evidence of the facts therein stated.
The underlying reasons for this exceptionary rule are necessity and trustworthiness, as
explained in Antillon v. Barcelon.
The litigation is unlimited in which testimony by officials is daily needed; the occasions in
which the officials would be summoned from his ordinary duties to declare as a witness are
numberless. The public officers are few in whose daily work something is not done in which
testimony is not needed from official sources. Were there no exception for official
statements, hosts of officials would be found devoting the greater part of their time to
attending as witnesses in court or delivering deposition before an officer. The work of
administration of government and the interest of the public having business with officials
would alike suffer in consequence. For these reasons, and for many others, a certain verity
is accorded such documents, which is not extended to private documents. (3 Wigmore on
Evidence, Sec. 1631).
The law reposes a particular confidence in public officers that it presumes they will
discharge their several trusts with accuracy and fidelity; and, therefore, whatever acts they
do in discharge of their duty may be given in evidence and shall be taken to be true under
such a degree of caution as to the nature and circumstances of each case may appear to
require.
It would have been an entirely different matter if Major Enriquez was not presented to
testify on his report. In that case the applicability of Section 44 of Rule 143 would have been
ripe for determination, and this Court would have agreed with the Court of Appeals that
said report was inadmissible since the aforementioned third requisite was not satisfied. The
statements given by the sources of information of Major Enriquez failed to qualify as
"official information," there being no showing that, at the very least, they were under a
duty to give the statements for record.
Similarly, the police report in this case is inadmissible for the purpose of proving the truth
of the statements contained therein but is admissible insofar as it constitutes part of the
testimony of PO3 Villanueva.
In any case, the Court holds that portions of PO3 Villanueva’s testimony which were of his
personal knowledge suffice to prove that Jose Juego indeed died as a result of the elevator
crash. PO3 Villanueva had seen Juego’s remains at the morgue,12 making the latter’s death
beyond dispute. PO3 Villanueva also conducted an ocular inspection of the premises of the
building the day after the incident13 and saw the platform for himself.14 He observed that
the platform was crushed15 and that it was totally damaged.16 PO3 Villanueva also
required Garcia and Fabro to bring the chain block to the police headquarters. Upon
inspection, he noticed that the chain was detached from the lifting machine, without any
pin or bolt.17
What petitioner takes particular exception to is PO3 Villanueva’s testimony that the cause
of the fall of the platform was the loosening of the bolt from the chain block. It is claimed
that such portion of the testimony is mere opinion. Subject to certain exceptions,18 the
opinion of a witness is generally not admissible.19
Petitioner’s contention, however, loses relevance in the face of the application of res ipsa
loquitur by the CA. The effect of the doctrine is to warrant a presumption or inference that
the mere fall of the elevator was a result of the person having charge of the instrumentality
was negligent. As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law
of negligence which recognizes that prima facie negligence may be established without
direct proof and furnishes a substitute for specific proof of negligence.20
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere happening of
an accident or injury will not generally give rise to an inference or presumption that it was
due to negligence on defendant’s part, under the doctrine of res ipsa loquitur, which means,
literally, the thing or transaction speaks for itself, or in one jurisdiction, that the thing or
instrumentality speaks for itself, the facts or circumstances accompanying an injury may be
such as to raise a presumption, or at least permit an inference of negligence on the part of
the defendant, or some other person who is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused the injury complained
of was under the control or management of the defendant, and that the occurrence
resulting in the injury was such as in the ordinary course of things would not happen if
those who had its control or management used proper care, there is sufficient evidence, or,
as sometimes stated, reasonable evidence, in the absence of explanation by the defendant,
that the injury arose from or was caused by the defendant’s want of care.21
One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is
absent or not available.22
The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge
of the instrumentality which causes the injury either knows the cause of the accident or has
the best opportunity of ascertaining it and that the plaintiff has no such knowledge, and
therefore is compelled to allege negligence in general terms and to rely upon the proof of
the happening of the accident in order to establish negligence. The inference which the
doctrine permits is grounded upon the fact that the chief evidence of the true cause,
whether culpable or innocent, is practically accessible to the defendant but inaccessible to
the injured person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff,
without knowledge of the cause, reaches over to defendant who knows or should know the
cause, for any explanation of care exercised by the defendant in respect of the matter of
which the plaintiff complains. The res ipsa loquitur doctrine, another court has said, is a rule
of necessity, in that it proceeds on the theory that under the peculiar circumstances in
which the doctrine is applicable, it is within the power of the defendant to show that there
was no negligence on his part, and direct proof of defendant’s negligence is beyond
plaintiff’s power. Accordingly, some court add to the three prerequisites for the application
of the res ipsa loquitur doctrine the further requirement that for the res ipsa loquitur
doctrine to apply, it must appear that the injured party had no knowledge or means of
knowledge as to the cause of the accident, or that the party to be charged with negligence
has superior knowledge or opportunity for explanation of the accident.23
 requisites for the application of res ipsa loquitur. Once the plaintiff makes out a prima facie
case of all the elements, the burden then shifts to defendant to explain.26 The presumption
The CA held that all the requisites of res ipsa loquitur are present in the case at bar:
or inference may be rebutted or overcome by other evidence and, under appropriate
circumstances disputable presumption, such as that of due care or innocence, may
outweigh the inference.27 It is not for the defendant to explain or prove its defense to
There is no dispute that appellee’s husband fell down from the 14th floor of a building to prevent the presumption or inference from arising. Evidence by the defendant of say, due
the basement while he was working with appellant’s construction project, resulting to his care, comes into play only after the circumstances for the application of the doctrine has
death. The construction site is within the exclusive control and management of appellant. It been established.1âwphi1.nêt
has a safety engineer, a project superintendent, a carpenter leadman and others who are in
complete control of the situation therein. The circumstances of any accident that would
occur therein are peculiarly within the knowledge of the appellant or its employees. On the
In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed
other hand, the appellee is not in a position to know what caused the accident. Res ipsa
before the police investigator as evidence of its due care. According to Fabro’s sworn
loquitur is a rule of necessity and it applies where evidence is absent or not readily available,
statement, the company enacted rules and regulations for the safety and security of its
provided the following requisites are present: (1) the accident was of a kind which does not
workers. Moreover, the leadman and the bodegero inspect the chain block before allowing
ordinarily occur unless someone is negligent; (2) the instrumentality or agency which
its use.
caused the injury was under the exclusive control of the person charged with negligence;
and (3) the injury suffered must not have been due to any voluntary action or contribution
on the part of the person injured. x x x.
It is ironic that petitioner relies on Fabro’s sworn statement as proof of its due care but, in
arguing that private respondent failed to prove negligence on the part of petitioner’s
employees, also assails the same statement for being hearsay.
No worker is going to fall from the 14th floor of a building to the basement while
performing work in a construction site unless someone is negligent[;] thus, the first
requisite for the application of the rule of res ipsa loquitur is present. As explained earlier,
Petitioner is correct. Fabro’s sworn statement is hearsay and inadmissible. Affidavits are
the construction site with all its paraphernalia and human resources that likely caused the
inadmissible as evidence under the hearsay rule, unless the affiant is placed on the witness
injury is under the exclusive control and management of appellant[;] thus[,] the second
stand to testify thereon.28 The inadmissibility of this sort of evidence is based not only on
requisite is also present. No contributory negligence was attributed to the appellee’s
the lack of opportunity on the part of the adverse party to cross-examine the affiant, but
deceased husband[;] thus[,] the last requisite is also present. All the requisites for the
also on the commonly known fact that, generally, an affidavit is not prepared by the affiant
application of the rule of res ipsa loquitur are present, thus a reasonable presumption or
himself but by another who uses his own language in writing the affiant’s statements which
inference of appellant’s negligence arises. x x x.24
may either be omitted or misunderstood by the one writing them.29 Petitioner, therefore,
cannot use said statement as proof of its due care any more than private respondent can
use it to prove the cause of her husband’s death. Regrettably, petitioner does not cite any
Petitioner does not dispute the existence of the requisites for the application of res ipsa
other evidence to rebut the inference or presumption of negligence arising from the
loquitur, but argues that the presumption or inference that it was negligent did not arise
application of res ipsa loquitur, or to establish any defense relating to the incident.
since it "proved that it exercised due care to avoid the accident which befell respondent’s
husband."

Next, petitioner argues that private respondent had previously availed of the death benefits
provided under the Labor Code and is, therefore, precluded from claiming from the
Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier,
deceased’s employer damages under the Civil Code.
the defendant’s negligence is presumed or inferred25 when the plaintiff establishes the
 Addressing the issue of whether the heirs had a choice of remedies, majority of the Court
En Banc,31 following the rule in Pacaña vs. Cebu Autobus Company, held in the affirmative.
Article 173 of the Labor Code states:

WE now come to the query as to whether or not the injured employee or his heirs in case of
Article 173. Extent of liability. – Unless otherwise provided, the liability of the State
death have a right of selection or choice of action between availing themselves of the
Insurance Fund under this Title shall be exclusive and in place of all other liabilities of the
worker’s right under the Workmen’s Compensation Act and suing in the regular courts
employer to the employee, his dependents or anyone otherwise entitled to receive
under the Civil Code for higher damages (actual, moral and exemplary) from the employers
damages on behalf of the employee or his dependents. The payment of compensation
by virtue of the negligence or fault of the employers or whether they may avail themselves
under this Title shall not bar the recovery of benefits as provided for in Section 699 of the
cumulatively of both actions, i.e., collect the limited compensation under the Workmen’s
Revised Administrative Code, Republic Act Numbered Eleven hundred sixty-one, as
Compensation Act and sue in addition for damages in the regular courts.
amended, Republic 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 or by other agencies of the government.
In disposing of a similar issue, this Court in Pacaña 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
The precursor of Article 173 of the Labor Code, Section 5 of the Workmen’s Compensation
against the tortfeasor for higher damages but he cannot pursue both courses of action
Act, provided that:
simultaneously. [Underscoring supplied.]

Section 5. Exclusive right to compensation. – The rights and remedies granted by this Act to
Nevertheless, the Court allowed some of the petitioners in said case to proceed with their
an employee by reason of a personal injury entitling him to compensation shall exclude all
suit under the Civil Code despite having availed of the benefits provided under the
other rights and remedies accruing to the employee, his personal representatives,
Workmen’s Compensation Act. The Court reasoned:
dependents or nearest of kin against the employer under the Civil Code and other laws
because of said injury x x x.

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
Whether Section 5 of the Workmen’s Compensation Act allowed recovery under said Act as
Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices
well as under the Civil Code used to be the subject of conflicting decisions. The Court finally
and claims for compensation to the Regional Office No. 1 of the then Department of Labor
settled the matter in Floresca vs.Philex Mining Corporation,30 which involved a cave-in
and all of them have been paid in full as of August 25, 1967, except Saturnino Martinez
resulting in the death of the employees of the Philex Mining Corporation. Alleging that the
whose heirs decided that they be paid in installments x x x. Such allegation was admitted by
mining corporation, in violation of government rules and regulations, failed to take the
herein petitioners in their opposition to the motion to dismiss dated may 27, 1968 x x x in
required precautions for the protection of the employees, the heirs of the deceased
the lower court, but they set up the defense that the claims were filed under the
employees filed a complaint against Philex Mining in the Court of First Instance (CFI). Upon
Workmen’s Compensation Act before they learned of the official report of the committee
motion of Philex Mining, the CFI dismissed the complaint for lack of jurisdiction. The heirs
created to investigate the accident which established the criminal negligence and violation
sought relief from this Court.
of law by Philex, and which report was forwarded by the Director of Mines to then
Executive Secretary Rafael Salas in a letter dated October 19, 1967 only x x x.
WE hold that although the other petitioners had received the benefits under the
Workmen’s Compensation Act, such my 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. [Underscoring
supplied.]
The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael
Maritime Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper
Mining Corp. vs. Abeleda.34 In the last case, the Court again recognized that a claimant who
had been paid under the Act could still sue under the Civil Code. The Court said:
In the Robles case, it was held that claims for damages sustained by workers in the course
of their employment could be filed only under the Workmen’s Compensation Law, to the
exclusion of all further claims under other laws. In Floresca, this doctrine was abrogated in
favor of the new rule that the claimants may invoke either the Workmen’s Compensation
Act or the provisions of the Civil Code, subject to the consequence that the choice of one
remedy will exclude the other and that the acceptance of compensation under the remedy
chosen will preclude a claim for additional benefits under the other remedy. The exception
is where a claimant who has already been paid under the Workmen’s Compensation Act
may still sue for damages under the Civil Code on the basis of supervening facts or
developments occurring after he opted for the first remedy. (Underscoring supplied.)
Here, the CA held that private respondent’s case came under the exception because private
respondent was unaware of petitioner’s negligence when she filed her claim for death
benefits from the State Insurance Fund. Private respondent filed the civil complaint for
damages after she received a copy of the police investigation report and the Prosecutor’s
Memorandum dismissing the criminal complaint against petitioner’s personnel. While
stating that there was no negligence attributable to the respondents in the complaint, the
prosecutor nevertheless noted in the Memorandum that, "if at all," the "case is civil in
nature." The CA thus applied the exception in Floresca:
x x x We do not agree that appellee has knowledge of the alleged negligence of appellant as
early as November 25, 1990, the date of the police investigator’s report. The appellee
merely executed her sworn statement before the police investigator concerning her
personal circumstances, her relation to the victim, and her knowledge of the accident. She
did not file the complaint for "Simple Negligence Resulting to Homicide" against appellant’s
employees. It was the investigator who recommended the filing of said case and his
supervisor referred the same to the prosecutor’s office. This is a standard operating
procedure for police investigators which appellee may not have even known. This may
explain why no complainant is mentioned in the preliminary statement of the public
prosecutor in her memorandum dated February 6, 1991, to wit: "Respondent Ferdinand
Fabro x x x are being charged by complainant of "Simple Negligence Resulting to Homicide."
It is also possible that the appellee did not have a chance to appear before the public
prosecutor as can be inferred from the following statement in said memorandum:
"Respondents who were notified pursuant to Law waived their rights to present
controverting evidence," thus there was no reason for the public prosecutor to summon the
appellee. Hence, notice of appellant’s negligence cannot be imputed on appellee before she
applied for death benefits under ECC or before she received the first payment therefrom.
Her using the police investigation report to support her complaint filed on May 9, 1991 may
just be an afterthought after receiving a copy of the February 6, 1991 Memorandum of the
Prosecutor’s Office dismissing the criminal complaint for insufficiency of evidence, stating
therein that: "The death of the victim is not attributable to any negligence on the part of
the respondents. If at all and as shown by the records this case is civil in nature."
(Underscoring supplied.) Considering the foregoing, We are more inclined to believe
appellee’s allegation that she learned about appellant’s negligence only after she applied
for and received the benefits under ECC. This is a mistake of fact that will make this case fall
under the exception held in the Floresca ruling.35
The CA further held that not only was private respondent ignorant of the facts, but of her
rights as well:
x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her
educational attainment; that she did not know what damages could be recovered from the
death of her husband; and that she did not know that she may also recover more from the
Civil Code than from the ECC. x x x.36
Petitioner impugns the foregoing rulings. It contends that private respondent "failed to
allege in her complaint that her application and receipt of benefits from the ECC were
attended by ignorance or mistake of fact. Not being an issue submitted during the trial, the
trial court had no authority to hear or adjudicate that issue."
Petitioner also claims that private respondent could not have been ignorant of the facts
because as early as November 28, 1990, private respondent was the complainant in a
criminal complaint for "Simple Negligence Resulting to Homicide" against petitioner’s
employees. On February 6, 1991, two months before the filing of the action in the lower
court, Prosecutor Lorna Lee issued a resolution finding that, although there was insufficient
evidence against petitioner’s employees, the case was "civil in nature." These purportedly
show that prior to her receipt of death benefits from the ECC on January 2, 1991 and every
month thereafter, private respondent also knew of the two choices of remedies available to
her and yet she chose to claim and receive the benefits from the ECC.
When a party having knowledge of the facts makes an election between inconsistent
remedies, the election is final and bars any action, suit, or proceeding inconsistent with the
elected remedy, in the absence of fraud by the other party. The first act of election acts as a
bar.37 Equitable in nature, the doctrine of election of remedies is designed to mitigate
possible unfairness to both parties. It rests on the moral premise that it is fair to hold
people responsible for their choices. The purpose of the doctrine is not to prevent any
recourse to any remedy, but to prevent a double redress for a single wrong.38
The choice of a party between inconsistent remedies results in a waiver by election. Hence,
the rule in Floresca that a claimant cannot simultaneously pursue recovery under the Labor
Code and prosecute an ordinary course of action under the Civil Code. The claimant, by his
choice of one remedy, is deemed to have waived the other.
Waiver is the intentional relinquishment of a known right.39
[It] is an act of understanding that presupposes that a party has knowledge of its rights, but
chooses not to assert them. It must be generally shown by the party claiming a waiver that
the person against whom the waiver is asserted had at the time knowledge, actual or
constructive, of the existence of the party’s rights or of all material facts upon which they
depended. Where one lacks knowledge of a right, there is no basis upon which waiver of it
can rest. Ignorance of a material fact negates waiver, and waiver cannot be established by a
consent given under a mistake or misapprehension of fact.
A person makes a knowing and intelligent waiver when that person knows that a right exists
and has adequate knowledge upon which to make an intelligent decision.
Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an
awareness of its consequences. That a waiver is made knowingly and intelligently must be
illustrated on the record or by the evidence.40
That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the
exception in Floresca.
It is in light of the foregoing principles that we address petitioner’s contentions.
Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to
allege in her complaint that she had availed of benefits from the ECC. It is, thus, erroneous
for petitioner to burden private respondent with raising waiver as an issue. On the contrary,
it is the defendant who ought to plead waiver, as petitioner did in pages 2-3 of its
Answer;41 otherwise, the defense is waived. It is, therefore, perplexing for petitioner to
now contend that the trial court had no jurisdiction over the issue when petitioner itself
pleaded waiver in the proceedings before the trial court.
Does the evidence show that private respondent knew of the facts that led to her
husband’s death and the rights pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this
case, the "fact" that served as a basis for nullifying the waiver is the negligence of
petitioner’s employees, of which private respondent purportedly learned only after the
prosecutor issued a resolution stating that there may be civil liability. In Floresca, it was the
negligence of the mining corporation and its violation of government rules and regulations.
Negligence, or violation of government rules and regulations, for that matter, however, is
not a fact, but a conclusion of law, over which only the courts have the final say. Such a
conclusion binds no one until the courts have decreed so. It appears, therefore, that the
principle that ignorance or mistake of fact nullifies a waiver has been misapplied in Floresca
and in the case at bar.
In any event, there is no proof that private respondent knew that her husband died in the
elevator crash when on November 15, 1990 she accomplished her application for benefits
from the ECC. The police investigation report is dated November 25, 1990, 10 days after the
accomplishment of the form. Petitioner filed the application in her behalf on November 27,
1990.
There is also no showing that private respondent knew of the remedies available to her
when the claim before the ECC was filed. On the contrary, private respondent testified that
she was not aware of her rights.
Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law
excuses no one from compliance therewith. As judicial decisions applying or interpreting
the laws or the Constitution form part of the Philippine legal system (Article 8, Civil Code),
private respondent cannot claim ignorance of this Court’s ruling in Floresca allowing a
choice of remedies.
The argument has no merit. The application of Article 3 is limited to mandatory and
prohibitory laws.42 This may be deduced from the language of the provision, which,
notwithstanding a person’s ignorance, does not excuse his or her compliance with the laws.
The rule in Floresca allowing private respondent a choice of remedies is neither mandatory
nor prohibitory. Accordingly, her ignorance thereof cannot be held against her.
Finally, the Court modifies the affirmance of the award of damages. The records do not
indicate the total amount private respondent ought to receive from the ECC, although it
appears from Exhibit "K"43 that she received P3,581.85 as initial payment representing the
accrued pension from November 1990 to March 1991. Her initial monthly pension,
according to the same Exhibit "K," was P596.97 and present total monthly pension was
P716.40. Whether the total amount she will eventually receive from the ECC is less than the
sum of P644,000.00 in total damages awarded by the trial court is subject to speculation,
and the case is remanded to the trial court for such determination. Should the trial court
find that its award is greater than that of the ECC, payments already received by private
respondent under the Labor Code shall be deducted from the trial court'’ award of damages.
Consistent with our ruling in Floresca, this adjudication aims to prevent double
compensation.
WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine
whether the award decreed in its decision is more than that of the ECC. Should the award
decreed by the trial court be greater than that awarded by the ECC, payments already made
to private respondent pursuant to the Labor Code shall be deducted therefrom. In all other
respects, the Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12986 March 31, 1966
THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA ONG,
petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS,
respondents-appellees.
Ross, Selph, Carrascoso and Janda for the respondents.
Bernabe Africa, etc. for the petitioners.
MAKALINTAL., J.:
This case is before us on a petition for review of the decision of the Court of Appeals, which
affirmed that of the Court of First Instance of Manila dismissing petitioners' second
amended complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that
in the afternoon of March 18, 1948 a fire broke out at the Caltex service station at the
corner of Antipolo street and Rizal Avenue, Manila. It started while gasoline was being
hosed from a tank truck into the underground storage, right at the opening of the receiving
tank where the nozzle of the hose was inserted. The fire spread to and burned several
neighboring houses, including the personal properties and effects inside them. Their
owners, among them petitioners here, sued respondents Caltex (Phil.), Inc. and Mateo
Boquiren, the first as alleged owner of the station and the second as its agent in charge of
operation. Negligence on the part of both of them was attributed as the cause of the fire.
The trial court and the Court of Appeals found that petitioners failed to prove negligence
and that respondents had exercised due care in the premises and with respect to the
supervision of their employees.
The first question before Us refers to the admissibility of certain reports on the fire
prepared by the Manila Police and Fire Departments and by a certain Captain Tinio of the
Armed Forces of the Philippines. Portions of the first two reports are as follows:
1. Police Department report: —
Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores was
transferring gasoline from a tank truck, plate No. T-5292 into the underground tank of the
Caltex Gasoline Station located at the corner of Rizal Avenue and Antipolo Street, this City,
an unknown Filipino lighted a cigarette and threw the burning match stick near the main
valve of the said underground tank. Due to the gasoline fumes, fire suddenly blazed. Quick
action of Leandro Flores in pulling off the gasoline hose connecting the truck with the
underground tank prevented a terrific explosion. However, the flames scattered due to the
hose from which the gasoline was spouting. It burned the truck and the following
accessorias and residences.
2. The Fire Department report: —
In connection with their allegation that the premises was (sic) subleased for the installation
of a coca-cola and cigarette stand, the complainants furnished this Office a copy of a
photograph taken during the fire and which is submitted herewith. it appears in this picture
that there are in the premises a coca-cola cooler and a rack which according to information
gathered in the neighborhood contained cigarettes and matches, installed between the
gasoline pumps and the underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito Morales
regarding the history of the gasoline station and what the chief of the fire department had
told him on the same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and
hence inadmissible. This ruling is now assigned as error. It is contended: first, that said
reports were admitted by the trial court without objection on the part of respondents;
secondly, that with respect to the police report (Exhibit V-Africa) which appears signed by a
Detective Zapanta allegedly "for Salvador Capacillo," the latter was presented as witness
but respondents waived their right to cross-examine him although they had the opportunity
to do so; and thirdly, that in any event the said reports are admissible as an exception to
the hearsay rule under section 35 of Rule 123, now Rule 130.
The first contention is not borne out by the record. The transcript of the hearing of
September 17, 1953 (pp. 167-170) shows that the reports in question, when offered as
evidence, were objected to by counsel for each of respondents on the ground that they
were hearsay and that they were "irrelevant, immaterial and impertinent." Indeed, in the
court's resolution only Exhibits J, K, K-5 and X-6 were admitted without objection; the
admission of the others, including the disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did take the witness stand, he was not
examined and he did not testify as to the facts mentioned in his alleged report (signed by
Detective Zapanta). All he said was that he was one of those who investigated "the location
of the fire and, if possible, gather witnesses as to the occurrence, and that he brought the
report with him. There was nothing, therefore, on which he need be cross-examined; and
the contents of the report, as to which he did not testify, did not thereby become
competent evidence. And even if he had testified, his testimony would still have been
objectionable as far as information gathered by him from third persons was concerned.
Petitioners maintain, however, that the reports in themselves, that is, without further
testimonial evidence on their contents, fall within the scope of section 35, Rule 123, which
provides that "entries in official records made in the performance of his duty by a public
officer of the Philippines, or by a person in the performance of a duty specially enjoined by
law, are prima facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just mentioned: (a) that the entry
was made by a public officer, or by another person specially enjoined by law to do so; (b)
that it was made by the public officer in the performance of his duties, or by such other
person in the performance of a duty specially enjoined by law; and (c) that the public officer
or other person had sufficient knowledge of the facts by him stated, which must have been
acquired by him personally or through official information (Moran, Comments on the Rules
of Court, Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be considered here. Obviously the
material facts recited in the reports as to the cause and circumstances of the fire were not
within the personal knowledge of the officers who conducted the investigation. Was
knowledge of such facts, however, acquired by them through official information? As to
some facts the sources thereof are not even identified. Others are attributed to Leopoldo
Medina, referred to as an employee at the gas station were the fire occurred; to Leandro
Flores, driver of the tank truck from which gasoline was being transferred at the time to the
underground tank of the station; and to respondent Mateo Boquiren, who could not,
according to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify their
statements as "official information" acquired by the officers who prepared the reports, the
persons who made the statements not only must have personal knowledge of the facts
stated but must have the duty to give such statements for record.1
The reports in question do not constitute an exception to the hearsay rule; the facts stated
therein were not acquired by the reporting officers through official information, not having
been given by the informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause and origin of the fire, the
doctrine of res ipsa loquitur should apply so as to presume negligence on the part of
appellees. Both the trial court and the appellate court refused to apply the doctrine in the
instant case on the grounds that "as to (its) applicability ... in the Philippines, there seems to
he nothing definite," and that while the rules do not prohibit its adoption in appropriate
cases, "in the case at bar, however, we find no practical use for such doctrine." The
question deserves more than such summary dismissal. The doctrine has actually been
applied in this jurisdiction, in the case of Espiritu vs. Philippine Power and Development Co.
(CA-G.R. No. 3240-R, September 20, 1949), wherein the decision of the Court of Appeals
was penned by Mr. Justice J.B.L. Reyes now a member of the Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were
loading grass between the municipalities of Bay and Calauan, in the province of Laguna,
with clear weather and without any wind blowing, an electric transmission wire, installed
and maintained by the defendant Philippine Power and Development Co., Inc. alongside the
road, suddenly parted, and one of the broken ends hit the head of the plaintiff as he was
about to board the truck. As a result, plaintiff received the full shock of 4,400 volts carried
It is true of course that decisions of the Court of Appeals do not lay down doctrines binding
by the wire and was knocked unconscious to the ground. The electric charge coursed
on the Supreme Court, but we do not consider this a reason for not applying the particular
through his body and caused extensive and serious multiple burns from skull to legs, leaving
doctrine of res ipsa loquitur in the case at bar. Gasoline is a highly combustible material, in
the bone exposed in some parts and causing intense pain and wounds that were not
the storage and sale of which extreme care must be taken. On the other hand, fire is not
completely healed when the case was tried on June 18, 1947, over one year after the
considered a fortuitous event, as it arises almost invariably from some act of man. A case
mishap.
strikingly similar to the one before Us is Jones vs. Shell Petroleum Corporation, et al., 171 So.
447:

The defendant therein disclaimed liability on the ground that the plaintiff had failed to
show any specific act of negligence, but the appellate court overruled the defense under
Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was
the doctrine of res ipsa loquitur. The court said:
leased to the Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934,
during the term of the lease, while gasoline was being transferred from the tank wagon,
also operated by the Shell Petroleum Corporation, to the underground tank of the station, a
The first point is directed against the sufficiency of plaintiff's evidence to place appellant on
fire started with resulting damages to the building owned by Jones. Alleging that the
its defense. While it is the rule, as contended by the appellant, that in case of
damages to his building amounted to $516.95, Jones sued the Shell Petroleum Corporation
noncontractual negligence, or culpa aquiliana, the burden of proof is on the plaintiff to
for the recovery of that amount. The judge of the district court, after hearing the testimony,
establish that the proximate cause of his injury was the negligence of the defendant, it is
concluded that plaintiff was entitled to a recovery and rendered judgment in his favor for
also a recognized principal that "where the thing which caused injury, without fault of the
$427.82. The Court of Appeals for the First Circuit reversed this judgment, on the ground
injured person, is under the exclusive control of the defendant and the injury is such as in
the testimony failed to show with reasonable certainty any negligence on the part of the
the ordinary course of things does not occur if he having such control use proper care, it
Shell Petroleum Corporation or any of its agents or employees. Plaintiff applied to this
affords reasonable evidence, in the absence of the explanation, that the injury arose from
Court for a Writ of Review which was granted, and the case is now before us for
defendant's want of care."
decision.1äwphï1.ñët

And the burden of evidence is shifted to him to establish that he has observed due care and
In resolving the issue of negligence, the Supreme Court of Louisiana held:
diligence. (San Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is
known by the name of res ipsa loquitur (the transaction speaks for itself), and is peculiarly
applicable to the case at bar, where it is unquestioned that the plaintiff had every right to
Plaintiff's petition contains two distinct charges of negligence — one relating to the cause of
be on the highway, and the electric wire was under the sole control of defendant company.
the fire and the other relating to the spreading of the gasoline about the filling station.
In the ordinary course of events, electric wires do not part suddenly in fair weather and
injure people, unless they are subjected to unusual strain and stress or there are defects in
their installation, maintenance and supervision; just as barrels do not ordinarily roll out of
the warehouse windows to injure passersby, unless some one was negligent. (Byrne v. Other than an expert to assess the damages caused plaintiff's building by the fire, no
Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the leading case that established that rule). witnesses were placed on the stand by the defendant.
Consequently, in the absence of contributory negligence (which is admittedly not present),
the fact that the wire snapped suffices to raise a reasonable presumption of negligence in
its installation, care and maintenance. Thereafter, as observed by Chief Baron Pollock, "if Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it
there are any facts inconsistent with negligence, it is for the defendant to prove." established by the record that the filling station and the tank truck were under the control
of the defendant and operated by its agents or employees. We further find from the
uncontradicted testimony of plaintiff's witnesses that fire started in the underground tank
Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained
attached to the filling station while it was being filled from the tank truck and while both
of occupies a lot approximately 10 m x 10 m at the southwest corner of Rizal Avenue and
the tank and the truck were in charge of and being operated by the agents or employees of
Antipolo. The location is within a very busy business district near the Obrero Market, a
the defendant, extended to the hose and tank truck, and was communicated from the
railroad crossing and very thickly populated neighborhood where a great number of people
burning hose, tank truck, and escaping gasoline to the building owned by the plaintiff.
mill around t

Predicated on these circumstances and the further circumstance of defendant's failure to

until
explain the cause of the fire or to show its lack of knowledge of the cause, plaintiff has
evoked the doctrine of res ipsa loquitur. There are many cases in which the doctrine may be
successfully invoked and this, we think, is one of them.
gasoline

Where the thing which caused the injury complained of is shown to be under the
management of defendant or his servants and the accident is such as in the ordinary course
of things does not happen if those who have its management or control use proper care, it
affords reasonable evidence, in absence of explanation by defendant, that the accident
arose from want of care. (45 C.J. #768, p. 1193).
tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this
constitute a secondary hazard to its operation which in turn endangers the entire
neighborhood to conflagration.

This statement of the rule of res ipsa loquitur has been widely approved and adopted by the
courts of last resort. Some of the cases in this jurisdiction in which the doctrine has been
applied are the following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v.
Lake Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505;
Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So. 599.
Furthermore, aside from precautions already taken by its operator the concrete walls south
and west adjoining the neighborhood are only 2-1/2 meters high at most and cannot avoid
the flames from leaping over it in case of fire.
Records show that there have been two cases of fire which caused not only material
damages but desperation and also panic in the neighborhood.

The principle enunciated in the aforequoted case applies with equal force here. The
gasoline station, with all its appliances, equipment and employees, was under the control of
appellees. A fire occurred therein and spread to and burned the neighboring houses. The
persons who knew or could have known how the fire started were appellees and their
employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable
inference that the incident happened because of want of care.
Although the soft drinks stand had been eliminated, this gasoline service station is also used
by its operator as a garage and repair shop for his fleet of taxicabs numbering ten or more,
adding another risk to the possible outbreak of fire at this already small but crowded
gasoline station.

The foregoing report, having been submitted by a police officer in the performance of his
In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. duties on the basis of his own personal observation of the facts reported, may properly be
X-1 Africa) the following appears: considered as an exception to the hearsay rule. These facts, descriptive of the location and
objective circumstances surrounding the operation of the gasoline station in question,
strengthen the presumption of negligence under the doctrine of res ipsa loquitur, since on
their face they called for more stringent measures of caution than those which would
satisfy the standard of due diligence under ordinary circumstances. There is no more
eloquent demonstration of this than the statement of Leandro Flores before the police
investigator. Flores was the driver of the gasoline tank wagon who, alone and without
assistance, was transferring the contents thereof into the underground storage when the
fire broke out. He said: "Before loading the underground tank there were no people, but
while the loading was going on, there were people who went to drink coca-cola (at the
coca-cola stand) which is about a meter from the hole leading to the underground tank." He
added that when the tank was almost filled he went to the tank truck to close the valve,
and while he had his back turned to the "manhole" he, heard someone shout "fire."
Even then the fire possibly would not have spread to the neighboring houses were it not for
another negligent omission on the part of defendants, namely, their failure to provide a
concrete wall high enough to prevent the flames from leaping over it. As it was the concrete
wall was only 2-1/2 meters high, and beyond that height it consisted merely of galvanized
iron sheets, which would predictably crumple and melt when subjected to intense heat.
Defendants' negligence, therefore, was not only with respect to the cause of the fire but
also with respect to the spread thereof to the neighboring houses.
There is an admission on the part of Boquiren in his amended answer to the second
amended complaint that "the fire was caused through the acts of a stranger who, without
authority, or permission of answering defendant, passed through the gasoline station and
negligently threw a lighted match in the premises." No evidence on this point was adduced,
but assuming the allegation to be true — certainly any unfavorable inference from the
admission may be taken against Boquiren — it does not extenuate his negligence. A
decision of the Supreme Court of Texas, upon facts analogous to those of the present case,
states the rule which we find acceptable here. "It is the rule that those who distribute a
dangerous article or agent, owe a degree of protection to the public proportionate to and
commensurate with a danger involved ... we think it is the generally accepted rule as
applied to torts that 'if the effects of the actor's negligent conduct actively and continuously
operate to bring about harm to another, the fact that the active and substantially
simultaneous operation of the effects of a third person's innocent, tortious or criminal act is
also a substantial factor in bringing about the harm, does not protect the actor from
liability.' (Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated in another way,
"The intention of an unforeseen and unexpected cause, is not sufficient to relieve a
wrongdoer from consequences of negligence, if such negligence directly and proximately
cooperates with the independent cause in the resulting injury." (MacAfee, et al. vs. Traver's
Gas Corporation, 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the damages caused to appellants.
This issue depends on whether Boquiren was an independent contractor, as held by the
Court of Appeals, or an agent of Caltex. This question, in the light of the facts not
controverted, is one of law and hence may be passed upon by this Court. These facts are: (1)
Boquiren made an admission that he was an agent of Caltex; (2) at the time of the fire
Caltex owned the gasoline station and all the equipment therein; (3) Caltex exercised
control over Boquiren in the management of the state; (4) the delivery truck used in
delivering gasoline to the station had the name of CALTEX painted on it; and (5) the license
to store gasoline at the station was in the name of Caltex, which paid the license fees.
(Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he denied that he
directed one of his drivers to remove gasoline from the truck into the tank and alleged that
the "alleged driver, if one there was, was not in his employ, the driver being an employee of
the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It is true that Boquiren
later on amended his answer, and that among the changes was one to the effect that he
was not acting as agent of Caltex. But then again, in his motion to dismiss appellants'
second amended complaint the ground alleged was that it stated no cause of action since
under the allegations thereof he was merely acting as agent of Caltex, such that he could
not have incurred personal liability. A motion to dismiss on this ground is deemed to be an
admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment therein, but
claims that the business conducted at the service station in question was owned and
operated by Boquiren. But Caltex did not present any contract with Boquiren that would
reveal the nature of their relationship at the time of the fire. There must have been one in
existence at that time. Instead, what was presented was a license agreement manifestly
tailored for purposes of this case, since it was entered into shortly before the expiration of
the one-year period it was intended to operate. This so-called license agreement (Exhibit
5-Caltex) was executed on November 29, 1948, but made effective as of January 1, 1948 so
as to cover the date of the fire, namely, March 18, 1948. This retroactivity provision is quite
significant, and gives rise to the conclusion that it was designed precisely to free Caltex
from any responsibility with respect to the fire, as shown by the clause that Caltex "shall not
be liable for any injury to person or property while in the property herein licensed, it being
understood and agreed that LICENSEE (Boquiren) is not an employee, representative or
agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be considered an
independent contractor. Under that agreement Boquiren would pay Caltex the purely
nominal sum of P1.00 for the use of the premises and all the equipment therein. He could
sell only Caltex Products. Maintenance of the station and its equipment was subject to the
approval, in other words control, of Caltex. Boquiren could not assign or transfer his rights
as licensee without the consent of Caltex. The license agreement was supposed to be from
January 1, 1948 to December 31, 1948, and thereafter until terminated by Caltex upon two
days prior written notice. Caltex could at any time cancel and terminate the agreement in
case Boquiren ceased to sell Caltex products, or did not conduct the business with due
diligence, in the judgment of Caltex. Termination of the contract was therefore a right
granted only to Caltex but not to Boquiren. These provisions of the contract show the
extent of the control of Caltex over Boquiren. The control was such that the latter was
virtually an employee of the former.
Taking into consideration the fact that the operator owed his position to the company and
the latter could remove him or terminate his services at will; that the service station
belonged to the company and bore its tradename and the operator sold only the products
of the company; that the equipment used by the operator belonged to the company and
were just loaned to the operator and the company took charge of their repair and
maintenance; that an employee of the company supervised the operator and conducted
periodic inspection of the company's gasoline and service station; that the price of the
products sold by the operator was fixed by the company and not by the operator; and that
the receipts signed by the operator indicated that he was a mere agent, the finding of the
Court of Appeals that the operator was an agent of the company and not an independent
contractor should not be disturbed.
To determine the nature of a contract courts do not have or are not bound to rely upon the
name or title given it by the contracting parties, should thereby a controversy as to what
they really had intended to enter into, but the way the contracting parties do or perform
their respective obligations stipulated or agreed upon may be shown and inquired into, and
should such performance conflict with the name or title given the contract by the parties,
the former must prevail over the latter. (Shell Company of the Philippines, Ltd. vs. Firemens'
Insurance Company of Newark, New Jersey, 100 Phil. 757).
The written contract was apparently drawn for the purpose of creating the apparent
relationship of employer and independent contractor, and of avoiding liability for the
negligence of the employees about the station; but the company was not satisfied to allow
such relationship to exist. The evidence shows that it immediately assumed control, and
proceeded to direct the method by which the work contracted for should be performed. By
reserving the right to terminate the contract at will, it retained the means of compelling
submission to its orders. Having elected to assume control and to direct the means and
methods by which the work has to be performed, it must be held liable for the negligence
of those performing service under its direction. We think the evidence was sufficient to
sustain the verdict of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no
cash invoices were presented to show that Boquiren had bought said gasoline from Caltex.
Neither was there a sales contract to prove the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the
amount of P2,000.00 collected by them on the insurance of the house. The deduction is
now challenged as erroneous on the ground that Article 2207 of the New Civil Code, which
provides for the subrogation of the insurer to the rights of the insured, was not yet in effect
when the loss took place. However, regardless of the silence of the law on this point at that
time, the amount that should be recovered be measured by the damages actually suffered,
otherwise the principle prohibiting unjust enrichment would be violated. With respect to
the claim of the heirs of Ong P7,500.00 was adjudged by the lower court on the basis of the
assessed value of the property destroyed, namely, P1,500.00, disregarding the testimony of
one of the Ong children that said property was worth P4,000.00. We agree that the court
erred, since it is of common knowledge that the assessment for taxation purposes is not an
accurate gauge of fair market value, and in this case should not prevail over positive
evidence of such value. The heirs of Ong are therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and respondents-appellees are held
liable solidarily to appellants, and ordered to pay them the aforesaid sum of P9,005.80 and
P10,000.00, respectively, with interest from the filing of the complaint, and costs.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21749 September 29, 1967
REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,
vs.
LUZON STEVEDORING CORPORATION, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
H. San Luis and L.V. Simbulan for defendant-appellant.
REYES, J.B.L., J.:
The present case comes by direct appeal from a decision of the Court of First Instance of
Manila (Case No. 44572) adjudging the defendant-appellant, Luzon Stevedoring Corporation,
liable in damages to the plaintiff-appellee Republic of the Philippines.
In the early afternoon of August 17, 1960, barge L-1892, owned by the Luzon Stevedoring
Corporation was being towed down the Pasig river by tugboats "Bangus" and "Barbero"1
also belonging to the same corporation, when the barge rammed against one of the
wooden piles of the Nagtahan bailey bridge, smashing the posts and causing the bridge to
list. The river, at the time, was swollen and the current swift, on account of the heavy
downpour of Manila and the surrounding provinces on August 15 and 16, 1960.
Sued by the Republic of the Philippines for actual and consequential damage caused by its
employees, amounting to P200,000 (Civil Case No. 44562, CFI of Manila), defendant Luzon
Stevedoring Corporation disclaimed liability therefor, on the grounds that it had exercised
due diligence in the selection and supervision of its employees; that the damages to the
bridge were caused by force majeure; that plaintiff has no capacity to sue; and that the
Nagtahan bailey bridge is an obstruction to navigation.
After due trial, the court rendered judgment on June 11, 1963, holding the defendant liable
for the damage caused by its employees and ordering it to pay to plaintiff the actual cost of
the repair of the Nagtahan bailey bridge which amounted to P192,561.72, with legal
interest thereon from the date of the filing of the complaint.
Defendant appealed directly to this Court assigning the following errors allegedly
committed by the court a quo, to wit:
I — The lower court erred in not holding that the herein defendant-appellant had exercised
the diligence required of it in the selection and supervision of its personnel to prevent
damage or injury to others.1awphîl.nèt
II — The lower court erred in not holding that the ramming of the Nagtahan bailey bridge
by barge L-1892 was caused by force majeure.
III — The lower court erred in not holding that the Nagtahan bailey bridge is an obstruction,
if not a menace, to navigation in the Pasig river.
IV — The lower court erred in not blaming the damage sustained by the Nagtahan bailey
bridge to the improper placement of the dolphins.
V — The lower court erred in granting plaintiff's motion to adduce further evidence in chief
after it has rested its case.
VI — The lower court erred in finding the plaintiff entitled to the amount of P192,561.72 for
damages which is clearly exorbitant and without any factual basis.
However, it must be recalled that the established rule in this jurisdiction is that when a
party appeals directly to the Supreme Court, and submits his case there for decision, he is
deemed to have waived the right to dispute any finding of fact made by the trial Court. The
only questions that may be raised are those of law (Savellano vs. Diaz, L-17441, July 31,
1963; Aballe vs. Santiago, L-16307, April 30, 1963; G.S.I.S. vs. Cloribel, L-22236, June 22,
1965). A converso, a party who resorts to the Court of Appeals, and submits his case for
decision there, is barred from contending later that his claim was beyond the jurisdiction of
the aforesaid Court. The reason is that a contrary rule would encourage the undesirable
practice of appellants' submitting their cases for decision to either court in expectation of
favorable judgment, but with intent of attacking its jurisdiction should the decision be
unfavorable (Tyson Tan, et al. vs. Filipinas Compañia de Seguros) et al., L-10096, Res. on
Motion to Reconsider, March 23, 1966). Consequently, we are limited in this appeal to the
issues of law raised in the appellant's brief.
Taking the aforesaid rules into account, it can be seen that the only reviewable issues in this
appeal are reduced to two:
1) Whether or not the collision of appellant's barge with the supports or piers of the
Nagtahan bridge was in law caused by fortuitous event or force majeure, and
2) Whether or not it was error for the Court to have permitted the plaintiff-appellee to
introduce additional evidence of damages after said party had rested its case.
As to the first question, considering that the Nagtahan bridge was an immovable and
stationary object and uncontrovertedly provided with adequate openings for the passage of
water craft, including barges like of appellant's, it is undeniable that the unusual event that
the barge, exclusively controlled by appellant, rammed the bridge supports raises a
presumption of negligence on the part of appellant or its employees manning the barge or
the tugs that towed it. For in the ordinary course of events, such a thing does not happen if
proper care is used. In Anglo American Jurisprudence, the inference arises by what is known
as the "res ipsa loquitur" rule (Scott vs. London Docks Co., 2 H & C 596; San Juan Light &
Transit Co. vs. Requena, 224 U.S. 89, 56 L. Ed., 680; Whitwell vs. Wolf, 127 Minn. 529, 149
N.W. 299; Bryne vs. Great Atlantic & Pacific Tea Co., 269 Mass. 130; 168 N.E. 540; Gribsby
vs. Smith, 146 S.W. 2d 719).
The appellant strongly stresses the precautions taken by it on the day in question: that it
assigned two of its most powerful tugboats to tow down river its barge L-1892; that it
assigned to the task the more competent and experienced among its patrons, had the
towlines, engines and equipment double-checked and inspected; that it instructed its
patrons to take extra precautions; and concludes that it had done all it was called to do, and
that the accident, therefore, should be held due to force majeure or fortuitous event.
These very precautions, however, completely destroy the appellant's defense. For caso
fortuito or force majeure (which in law are identical in so far as they exempt an obligor
from liability)2 by definition, are extraordinary events not foreseeable or avoidable, "events
that could not be foreseen, or which, though foreseen, were inevitable" (Art. 1174, Civ.
Code of the Philippines). It is, therefore, not enough that the event should not have been
foreseen or anticipated, as is commonly believed, but it must be one impossible to foresee
or to avoid. The mere difficulty to foresee the happening is not impossibility to foresee the
same: "un hecho no constituye caso fortuito por la sola circunstancia de que su existencia
haga mas dificil o mas onerosa la accion diligente del presento ofensor" (Peirano Facio,
Responsibilidad Extra-contractual, p. 465; Mazeaud Trait de la Responsibilite Civil, Vol. 2,
sec. 1569). The very measures adopted by appellant prove that the possibility of danger
was not only foreseeable, but actually foreseen, and was not caso fortuito.
 WHEREFORE, finding no error in the decision of the lower Court appealed from, the same is
hereby affirmed. Costs against the defendant-appellant.
Otherwise stated, the appellant, Luzon Stevedoring Corporation, knowing and appreciating
the perils posed by the swollen stream and its swift current, voluntarily entered into a THIRD DIVISION
situation involving obvious danger; it therefore assured the risk, and can not shed
responsibility merely because the precautions it adopted turned out to be insufficient.
Hence, the lower Court committed no error in holding it negligent in not suspending [G.R. No. 118231. July 5, 1996]
operations and in holding it liable for the damages caused.

DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners, vs. COURT OF APPEALS,
It avails the appellant naught to argue that the dolphins, like the bridge, were improperly SPOUSES QUEDO D. ACOGIDO and FLOTILDE G. VILLEGAS, respondents.
located. Even if true, these circumstances would merely emphasize the need of even higher
degree of care on appellant's part in the situation involved in the present case. The
appellant, whose barges and tugs travel up and down the river everyday, could not safely
DECISION
ignore the danger posed by these allegedly improper constructions that had been erected,
and in place, for years.

DAVIDE, JR., J.:

On the second point: appellant charges the lower court with having abused its discretion in
the admission of plaintiff's additional evidence after the latter had rested its case. There is
an insinuation that the delay was deliberate to enable the manipulation of evidence to
prejudice defendant-appellant.
We find no merit in the contention. Whether or not further evidence will be allowed after a
party offering the evidence has rested his case, lies within the sound discretion of the trial
Judge, and this discretion will not be reviewed except in clear case of abuse.3
In the present case, no abuse of that discretion is shown. What was allowed to be
introduced, after plaintiff had rested its evidence in chief, were vouchers and papers to
support an item of P1,558.00 allegedly spent for the reinforcement of the panel of the
bailey bridge, and which item already appeared in Exhibit GG. Appellant, in fact, has no
reason to charge the trial court of being unfair, because it was also able to secure, upon
written motion, a similar order dated November 24, 1962, allowing reception of additional
evidence for the said defendant-appellant.4
Throughout history, patients have consigned their fates and lives to the skill of their doctors.
For a breach of this trust, men have been quick to demand retribution. Some 4,000 years
ago, the Code of Hammurabi[1] then already provided: "If a physician make a deep incision
upon a man with his bronze lancet and cause the man's death, or operate on the eye socket
of a man with his bronze lancet and destroy the man's eyes, they shall cut off his hand."[2]
Subsequently, Hippocrates[3] wrote what was to become part of the healer's oath: "I will
follow that method of treatment which according to my ability and judgment, I consider for
the benefit of my patients, and abstain from whatever is deleterious and mischievous . . . .
While I continue to keep this oath unviolated may it be granted me to enjoy life and
practice the art, respected by all men at all times but should I trespass and violate this oath,
may the reverse be my lot." At present, the primary objective of the medical profession is
the preservation of life and maintenance of the health of the people.[4]
Needless to say then, when a physician strays from his sacred duty and endangers instead
the life of his patient, he must be made to answer therefor. Although society today cannot
and will not tolerate the punishment meted out by the ancients, neither will it and this
Court, as this case would show, let the act go uncondemned.
The petitioners appeal from the decision[5] of the Court of Appeals of 11 May 1994 in
CA-G.R. CV No. 30851, which reversed the decision[6] of 21 December 1990 of Branch 30 of
the Regional Trial Court (RTC) of Negros Oriental in Civil Case No. 9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital, Dumaguete
City from January 9, 1978 to September 1989. Between 1987 and September, 1989 she was
also the Actg. Head of the Department of Obstetrics and Gynecology at the said Hospital.
Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as the
latter's private patient sometime before September 21, 1988.
In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr. Doris Teresita
Sy who was also a Resident Physician at the same Hospital, C.I. and O.R. Nurse Arlene
Diones and some student nurses performed a simple cesarean section on Mrs. Villegas at
the Negros Oriental Provincial Hospital and after 45 minutes Mrs. Villegas delivered her first
child, Rachel Acogido, at about 11:45 that morning. Thereafter, Plaintiff remained confined
at the Hospital until September 27, 1988 during which period of confinement she was
regularly visited by Dr. Batiquin. On September 28, 1988, Mrs. Villegas checked out of the
Hospital . . . and on the same day she paid Dr. Batiquin, thru the latter's secretary, the
amount of P1,500.00 as "professional fee" . . . .
Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and
complained of being feverish. She also gradually lost her appetite, so she consulted Dr.
Batiquin at the latter's polyclinic who prescribed for her certain medicines . . . which she
had been taking up to December, 1988.
In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on October
31, 1988 . . . certifying to her physical fitness to return to her work on November 7, 1988. So,
on the second week of November, 1988 Mrs. Villegas returned to her work at the Rural
Bank of Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end and
despite the medications administered by Dr. Batiquin. When the pains become unbearable
and she was rapidly losing weight she consulted Dr. Ma. Salud Kho at the Holy Child's
Hospital in Dumaguete City on January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas at the
Holy Child's Hospital on January 20, 1989 she found Mrs. Villegas to be feverish, pale and
was breathing fast. Upon examination she felt an abdominal mass one finger below the
umbilicus which she suspected to be either a tumor of the uterus or an ovarian cyst, either
of which could be cancerous. She had an x-ray taken of Mrs. Villegas' chest, abdomen and
kidney. She also took blood tests of Plaintiff. A blood count showed that Mrs. Villegas had
[an] infection inside her abdominal cavity. The result of all those examinations impelled Dr.
Kho to suggest that Mrs. Villegas submit to another surgery to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow discharge
inside, an ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus
behind the uterus, and a piece of rubber materials on the right side of the uterus embedded
on [sic] the ovarian cyst, 2 inches by 3/4 inch in size. This piece of rubber material which Dr.
Kho described as a "foreign body" looked like a piece of a "rubber glove" . . . and which is
[sic] also "rubber-drain like . . . . It could have been a torn section of a surgeon's gloves or
could have come from other sources. And this foreign body was the cause of the infection
of the ovaries and consequently of all the discomfort suffered by Mrs. Villegas after her
delivery on September 21, 1988.[7]
The piece of rubber allegedly found near private respondent Flotilde Villegas' uterus was
not presented in court, and although Dr. Ma. Salud Kho testified that she sent it to a
pathologist in Cebu City for examination,[8] it was not mentioned in the pathologist's
Surgical Pathology Report.[9]
Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a
Medical Certificate,[10] a Progress Record,[11] an Anesthesia Record,[12] a Nurse's
Record,[13] and a Physician's Discharge Summary.[14] The trial court, however, regarded
these documentary evidence as mere hearsay, "there being no showing that the person or
persons who prepared them are deceased or unable to testify on the facts therein
stated . . . . Except for the Medical Certificate (Exhibit "F"), all the above documents were
allegedly prepared by persons other than Dr. Kho, and she merely affixed her signature on
some of them to express her agreement thereto . . . ."[15] The trial court also refused to
give weight to Dr. Kho's testimony regarding the subject piece of rubber as Dr. Kho "may
not have had first-hand knowledge" thereof,[16] as could be gleaned from her statement,
thus:
A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goes with
the tissues but unluckily I don't know where the rubber was.[17]
The trial court deemed vital Dr. Victoria Batiquin's testimony that when she confronted Dr.
Kho regarding the piece of rubber, "Dr. Kho answered that there was rubber indeed but
that she threw it away."[18] This statement, the trial court noted, was never denied nor
disputed by Dr. Kho, leading it to conclude:
There are now two different versions on the whereabouts of that offending "rubber" (1)
that it was sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and (2) that Dr.
Kho threw it away as told by her to Defendant. The failure of the Plaintiffs to reconcile
these two different versions serve only to weaken their claim against Defendant
Batiquin.[19]
All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without
admitting the private respondents' documentary evidence, deemed Dr. Kho's positive
testimony to definitely establish that a piece of rubber was found near private respondent
Villegas' uterus. Thus, the Court of Appeals reversed the decision of the trial court, holding:
4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of
evidence. The trial court itself had narrated what happened to appellant Flotilde after the
cesarean operation made by appellee doctor . . . . After the second operation, appellant
Flotilde became well and healthy. Appellant Flotilde's troubles were caused by the infection
due to the "rubber" that was left inside her abdomen. Both appellants testified that after
the operation made by appellee doctor, they did not go to any other doctor until they
finally decided to see another doctor in January, 1989 when she was not getting any better
under the care of appellee Dr. Batiquin . . . . Appellee Dr. Batiquin admitted on the witness
stand that she alone decided when to close the operating area; that she examined the
portion she operated on before closing the same . . . . Had she exercised due diligence,
appellee Dr. Batiquin would have found the rubber and removed it before closing the
operating area.[20]
The appellate court then ruled:
Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of P7,100.00 (Exh.
G-1-A) plus hospital and medical expenses together with doctor's fees in the total amount
P9,900.00 (Exhs. G and G-2)] for the second operation that saved her life.
For the miseries appellants endured for more than three (3) months, due to the negligence
of appellee Dr. Batiquin, they are entitled to moral damages in the amount of P100,000.00;
exemplary damages in the amount of P20,000.00 and attorney's fees in the amount of
P25,000.00.
The fact that appellant Flotilde can no longer bear children because her uterus and ovaries
were removed by Dr. Kho is not taken into consideration as it is not shown that the removal
of said organs were the direct result of the rubber left by appellee Dr. Batiquin near the
uterus. What is established is that the rubber left by appellee cause infection, placed the
life of appellant Flotilde in jeopardy and caused appellants fear, worry and anxiety . . . .
WHEREFORE, the appealed judgment, dismissing the complaint for damages is REVERSED
and SET ASIDE. Another judgment is hereby entered ordering defendants-appellees to pay
plaintiffs-appellants the amounts of P17,000.00 as and for actual damages; P100,000.00 as
and for moral damages; P20,000.00 as and for exemplary damages; and P25,000.00 as and
for attorney's fees plus the cost of litigation.
SO ORDERED.[21]
From the above judgment, the petitioners appealed to this Court claiming that the
appellate court; (1) committed grave abuse of discretion by resorting to findings of fact not
supported by the evidence on record, and (2) exceeded its discretion, amounting to lack or
excess of jurisdiction, when it gave credence to testimonies punctured with contradictions
and falsities.
The private respondents commented that the petition raised only questions of fact, which
were not proper for review by this Court.
While the rule is that only questions of law may be raised in a petition for review on
certiorari, there are exceptions, among which are when the factual findings of the trial
court and the appellate court conflict, when the appealed decision is clearly contradicted by
the evidence on record, or when the appellate court misapprehended the facts.[22]
After deciphering the cryptic petition, we find that the focal point of the instant appeal is
the appreciation of Dr. Kho's testimony. The petitioners contend that the Court of Appeals
misappreciated the following portion of Dr. Kho's testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind, just in case this would turn out to
be a medico-legal case, I have heard somebody that [sic] says [sic] there is [sic] a foreign
body that goes with the tissues but unluckily I don't know where the rubber was. It was not
in the Lab, it was not in Cebu.[23] (Italics supplied)
The petitioners prefer the trial court's interpretation of the above testimony, i.e., that Dr.
Kho's knowledge of the piece of rubber was based on hearsay. The Court of Appeals, on the
other hand, concluded that the underscored phrase was taken out of context by the trial
court. According to the Court of Appeals, the trial court should have likewise considered the
other portions of Dr. Kho's testimony, especially the following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-yellow discharge inside the abdomen, there
was an ovarian cyst on the left and side and there was also an ovarian cyst on the right
which, on opening up or freeing it up from the uterus, turned out to be pus. Both ovaries
turned out . . . to have pus. And then, cleaning up the uterus, at the back of the uterus it
was very dirty, it was full of pus. And there was a [piece of] rubber, we found a [piece of]
rubber on the right side.[24]
We agree with the Court of Appeals. The phrase relied upon by the trial court does not
negate the fact that Dr. Kho saw a piece of rubber in private respondent Villegas' abdomen,
and that she sent it to a laboratory and then to Cebu City for examination by a
pathologist.[25] Not even the Pathologist's Report, although devoid of any mention of a
piece of rubber, could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the
piece of rubber could not be based on other than first hand knowledge for, as she asserted
before the trial court:
Q But you are sure you have seen [the piece of rubber]?
A Oh yes. I was not the only one who saw it.[26]
The petitioners emphasize that the private respondents never reconciled Dr. Kho's
testimony with Dr. Batiquin's claim on the witness stand that when Dr. Batiquin confronted
Dr. Kho about the foreign body, the latter said that there was a piece of rubber but that she "piece of rubber" as an eloquent evidence of what she would reveal should there be a
threw it away. Although hearsay, Dr. Batiquin's claim was not objected to, and hence, the "legal problem" which she claim[s] to have anticipated.[35]
same is admissible[27] but it carries no probative value.[28] Nevertheless, assuming
otherwise, Dr. Batiquin's statement cannot belie the fact that Dr. Kho found a piece of
rubber near private respondent Villegas' uterus. And even if we were to doubt Dr. Kho as to Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony
what she did to the piece of rubber, i.e., whether she threw it away or sent it to Cebu City, [that a piece of rubber was indeed found in private respondent Villegas' abdomen] prevails
we are not justified in distrusting her as to her recovery of a piece of rubber from private over the negative testimony in favor of the petitioners.
respondent Villegas' abdomen. On this score, it is perfectly reasonable to believe the
testimony of a witness with respect to some facts and disbelieve his testimony with respect
to other facts. And it has been aptly said that even when a witness is found to have
As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve
deliberately falsified in some material particulars, it is not required that the whole of his
into the nature and operation of this doctrine:
uncorroborated testimony be rejected, but such portions thereof deemed worthy of belief
may be credited.[29]

This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury is
shown to be under the management of the defendant, and the accident is such as in the
It is here worth nothing that the trial court paid heed to the following portions of Dr.
ordinary course of things does not happen if those who have the management use proper
Batiquin's testimony: that no rubber drain was used in the operation,[30] and that there
care, it affords reasonable evidence, in the absence of an explanation by the defendant,
was neither any tear on Dr. Batiquin's gloves after the operation nor blood smears on her
that the accident arose from want of care." Or as Black's Law Dictionary puts it:
hands upon removing her gloves.[31] Moreover, the trial court pointed out that the
absence of a rubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during
the operation on private respondent Villegas.[32] But the trial court failed to recognize that
the assertions of Drs. Batiquin and Sy were denials or negative testimonies. Well-settled is Res ipsa loquitur. The thing speaks for itself. Rebuttable presumption or inference that
the rule that positive testimony is stronger than negative testimony.[33] Of course, as the defendant was negligent, which arises upon proof that [the] instrumentality causing injury
petitioners advocate, such positive testimony must come from a credible source, which was in defendant's exclusive control, and that the accident was one which ordinary does
leads us to the second assigned error. not happen in absence of negligence. Res ipsa loquitur is [a] rule of evidence whereby
negligence of [the] alleged wrongdoer may be inferred from [the] mere fact that [the]
accident happened provided [the] character of [the] accident and circumstances attending
it lead reasonably to belief that in [the] absence of negligence it would not have occurred
While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony,
and that thing which caused injury is shown to have been under [the] management and
a reading of the said testimony reveals no such infirmity and establishes Dr. Kho as a
control of [the] alleged wrongdoer . . . . Under [this] doctrine . . . the happening of an injury
credible witness. Dr. Kho was frank throughout her turn on the witness stand. Furthermore,
permits an inference of negligence where plaintiff produces substantial evidence that [the]
no motive to state any untruth was ever imputed against Dr. Kho, leaving her
injury was caused by an agency or instrumentality under [the] exclusive control and
trustworthiness unimpaired.[34] The trial court's following declaration shows that while it
management of defendant, and that the occurrence [sic] was such that in the ordinary
was critical of the lack of care with which Dr. Kho handled the piece of rubber, it was not
course of things would not happen if reasonable care had been used.
prepared to doubt Dr. Kho's credibility, thus only supporting out appraisal of Dr. Kho's
trustworthiness:

xxx xxx xxx

This is not to say that she was less than honest when she testified about her findings, but it
can also be said that she did not take the most appropriate precaution to preserve that
The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of negligence
which recognizes that prima facie negligence may be established without direct proof and
Costs against the petitioners.
furnishes a substitute for specific proof of negligence. The doctrine is not a rule of
substantive law, but merely a mode of proof or a mere procedural convenience. The rule,
when applicable to the facts and circumstances of a particular case, is not intended to and
does not dispense with the requirement of proof of culpable negligence on the party SO ORDERED.
charged. It merely determines and regulates what shall be prima facie evidence thereof and
facilitates the burden of plaintiff of proving a breach of the duty of due care. The doctrine
can be invoked when and only when, under the circumstances involved, direct evidence is FIRST DIVISION
absent and not readily available.[36]

[G.R. No. 141910. August 6, 2002]

In the instant case, all the requisites for recourse to the doctrine are present. First, the
entire proceedings of the cesarean section were under the exclusive control of Dr. Batiquin.
In this light, the private respondents were bereft of direct evidence as to the actual culprit FGU INSURANCE CORPORATION, petitioner, vs. G.P. SARMIENTO TRUCKING CORPORATION
or the exact cause of the foreign object finding its way into private respondent Villegas' and LAMBERT M. EROLES, respondents.
body, which, needless to say, does not occur unless through the intervention of negligence.
Second, since aside from the cesarean section, private respondent Villegas underwent no
other operation which could have caused the offending piece of rubber to appear in her
DECISION
uterus, it stands to reason that such could only have been a by-product of the cesarean
section performed by Dr. Batiquin. The petitioners, in this regard, failed to overcome the
presumption of negligence arising from resort to the doctrine of res ipsa loquitur. Dr.
Batiquin is therefore liable for negligently leaving behind a piece of rubber in private VITUG, J.:
respondent Villegas' abdomen and for all the adverse effects thereof.

As a final word, this Court reiterates its recognition of the vital role the medical profession
plays in the lives of the people,[37] and State's compelling interest to enact measures to
protect the public from "the potentially deadly effects of incompetence and ignorance in
those who would undertake to treat our bodies and minds for disease or trauma."[38]
Indeed, a physician is bound to serve the interest of his patients "with the greatest of
solicitude, giving them always his best talent and skill."[39] Through her tortious conduct,
the petitioner endangered the life of Flotilde Villegas, in violation of her profession's rigid
ethical code and in contravention of the legal standards set forth for professionals, in the
general,[40] and members of the medical profession,[41] in particular.
WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in CA-G.R. CV
No. 30851 is hereby AFFIRMED in toto.
G.P. Sarmiento Trucking Corporation (GPS) undertook to deliver on 18 June 1994 thirty (30)
units of Condura S.D. white refrigerators aboard one of its Isuzu truck, driven by Lambert
Eroles, from the plant site of Concepcion Industries, Inc., along South Superhighway in
Alabang, Metro Manila, to the Central Luzon Appliances in Dagupan City. While the truck
was traversing the north diversion road along McArthur highway in Barangay Anupol,
Bamban, Tarlac, it collided with an unidentified truck, causing it to fall into a deep canal,
resulting in damage to the cargoes.
FGU Insurance Corporation (FGU), an insurer of the shipment, paid to Concepcion Industries,
Inc., the value of the covered cargoes in the sum of P204,450.00. FGU, in turn, being the
subrogee of the rights and interests of Concepcion Industries, Inc., sought reimbursement
of the amount it had paid to the latter from GPS. Since the trucking company failed to heed
the claim, FGU filed a complaint for damages and breach of contract of carriage against GPS
and its driver Lambert Eroles with the Regional Trial Court, Branch 66, of Makati City. In its
answer, respondents asserted that GPS was the exclusive hauler only of Concepcion
Industries, Inc., since 1988, and it was not so engaged in business as a common carrier.
Respondents further claimed that the cause of damage was purely accidental.
The issues having thus been joined, FGU presented its evidence, establishing the extent of
damage to the cargoes and the amount it had paid to the assured. GPS, instead of
submitting its evidence, filed with leave of court a motion to dismiss the complaint by way
of demurrer to evidence on the ground that petitioner had failed to prove that it was a
common carrier.
The trial court, in its order of 30 April 1996,[1] granted the motion to dismiss, explaining
thusly:
Under Section 1 of Rule 131 of the Rules of Court, it is provided that Each party must prove
his own affirmative allegation, xxx.
In the instant case, plaintiff did not present any single evidence that would prove that
defendant is a common carrier.
xxxxxxxxx
Accordingly, the application of the law on common carriers is not warranted and the
presumption of fault or negligence on the part of a common carrier in case of loss, damage
or deterioration of goods during transport under 1735 of the Civil Code is not availing.
Thus, the laws governing the contract between the owner of the cargo to whom the
plaintiff was subrogated and the owner of the vehicle which transports the cargo are the
laws on obligation and contract of the Civil Code as well as the law on quasi delicts.
Under the law on obligation and contract, negligence or fault is not presumed. The law on
quasi delict provides for some presumption of negligence but only upon the attendance of
some circumstances. Thus, Article 2185 provides:
Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor
vehicle has been negligent if at the time of the mishap, he was violating any traffic
regulation.
Evidence for the plaintiff shows no proof that defendant was violating any traffic regulation.
Hence, the presumption of negligence is not obtaining.
Considering that plaintiff failed to adduce evidence that defendant is a common carrier and
defendants driver was the one negligent, defendant cannot be made liable for the damages
of the subject cargoes.[2]
The subsequent motion for reconsideration having been denied,[3] plaintiff interposed an
appeal to the Court of Appeals, contending that the trial court had erred (a) in holding that
the appellee corporation was not a common carrier defined under the law and existing
jurisprudence; and (b) in dismissing the complaint on a demurrer to evidence.
The Court of Appeals rejected the appeal of petitioner and ruled in favor of GPS. The
appellate court, in its decision of 10 June 1999, [4] discoursed, among other things, that -
"x x x in order for the presumption of negligence provided for under the law governing
common carrier (Article 1735, Civil Code) to arise, the appellant must first prove that the
appellee is a common carrier. Should the appellant fail to prove that the appellee is a
common carrier, the presumption would not arise; consequently, the appellant would have
to prove that the carrier was negligent.
"x x x x x x x x x

"Because it is the appellant who insists that the appellees can still be considered as a
common carrier, despite its `limited clientele, (assuming it was really a common carrier), it
follows that it (appellant) has the burden of proving the same. It (plaintiff-appellant) `must
establish his case by a preponderance of evidence, which means that the evidence as a
whole adduced by one side is superior to that of the other. (Summa Insurance Corporation
vs. Court of Appeals, 243 SCRA 175). This, unfortunately, the appellant failed to do -- hence,
the dismissal of the plaintiffs complaint by the trial court is justified.
"x x x x x x x x x
"Based on the foregoing disquisitions and considering the circumstances that the appellee
trucking corporation has been `its exclusive contractor, hauler since 1970, defendant has no
choice but to comply with the directive of its principal, the inevitable conclusion is that the
appellee is a private carrier.
"x x x x x x x x x
"x x x the lower court correctly ruled that 'the application of the law on common carriers is
not warranted and the presumption of fault or negligence on the part of a common carrier
in case of loss, damage or deterioration of good[s] during transport under [article] 1735 of
the Civil Code is not availing.' x x x.
"Finally, We advert to the long established rule that conclusions and findings of fact of a
trial court are entitled to great weight on appeal and should not be disturbed unless for
strong and valid reasons."[5]
Petitioner's motion for reconsideration was likewise denied;[6] hence, the instant
petition,[7] raising the following issues:
I
WHETHER RESPONDENT GPS MAY BE CONSIDERED AS A COMMON CARRIER AS DEFINED
UNDER THE LAW AND EXISTING JURISPRUDENCE.
II
WHETHER RESPONDENT GPS, EITHER AS A COMMON CARRIER OR A PRIVATE CARRIER, MAY
BE PRESUMED TO HAVE BEEN NEGLIGENT WHEN THE GOODS IT UNDERTOOK TO
TRANSPORT SAFELY WERE SUBSEQUENTLY DAMAGED WHILE IN ITS PROTECTIVE CUSTODY
AND POSSESSION.
III
WHETHER THE DOCTRINE OF RES IPSA LOQUITUR IS APPLICABLE IN THE INSTANT CASE.
On the first issue, the Court finds the conclusion of the trial court and the Court of Appeals
to be amply justified. GPS, being an exclusive contractor and hauler of Concepcion
Industries, Inc., rendering or offering its services to no other individual or entity, cannot be
considered a common carrier. Common carriers are persons, corporations, firms or
associations engaged in the business of carrying or transporting passengers or goods or
both, by land, water, or air, for hire or compensation, offering their services to the public,[8]
whether to the public in general or to a limited clientele in particular, but never on an
exclusive basis.[9] The true test of a common carrier is the carriage of passengers or goods,
providing space for those who opt to avail themselves of its transportation service for a
fee.[10] Given accepted standards, GPS scarcely falls within the term common carrier.
The above conclusion nothwithstanding, GPS cannot escape from liability.
In culpa contractual, upon which the action of petitioner rests as being the subrogee of
Concepcion Industries, Inc., the mere proof of the existence of the contract and the failure
of its compliance justify, prima facie, a corresponding right of relief.[11] The law,
recognizing the obligatory force of contracts,[12] will not permit a party to be set free from
liability for any kind of misperformance of the contractual undertaking or a contravention
of the tenor thereof.[13] A breach upon the contract confers upon the injured party a valid
cause for recovering that which may have been lost or suffered. The remedy serves to
preserve the interests of the promisee that may include his expectation interest, which is
his interest in having the benefit of his bargain by being put in as good a position as he
would have been in had the contract been performed, or his reliance interest, which is his
interest in being reimbursed for loss caused by reliance on the contract by being put in as
good a position as he would have been in had the contract not been made; or his restitution
interest, which is his interest in having restored to him any benefit that he has conferred on
the other party.[14] Indeed, agreements can accomplish little, either for their makers or for
society, unless they are made the basis for action.[15] The effect of every infraction is to
create a new duty, that is, to make recompense to the one who has been injured by the
failure of another to observe his contractual obligation[16] unless he can show extenuating
circumstances, like proof of his exercise of due diligence (normally that of the diligence of a
good father of a family or, exceptionally by stipulation or by law such as in the case of
common carriers, that of extraordinary diligence) or of the attendance of fortuitous event,
to excuse him from his ensuing liability.
Respondent trucking corporation recognizes the existence of a contract of carriage between
it and petitioners assured, and admits that the cargoes it has assumed to deliver have been
lost or damaged while in its custody. In such a situation, a default on, or failure of
compliance with, the obligation in this case, the delivery of the goods in its custody to the
place of destination - gives rise to a presumption of lack of care and corresponding liability
on the part of the contractual obligor the burden being on him to establish otherwise. GPS
has failed to do so.
Respondent driver, on the other hand, without concrete proof of his negligence or fault,
may not himself be ordered to pay petitioner. The driver, not being a party to the contract
of carriage between petitioners principal and defendant, may not be held liable under the
agreement. A contract can only bind the parties who have entered into it or their
successors who have assumed their personality or their juridical position.[17] Consonantly
with the axiom res inter alios acta aliis neque nocet prodest, such contract can neither favor
nor prejudice a third person. Petitioners civil action against the driver can only be based on
culpa aquiliana, which, unlike culpa contractual, would require the claimant for damages to
prove negligence or fault on the part of the defendant.[18]
A word in passing. Res ipsa loquitur, a doctrine being invoked by petitioner, holds a
defendant liable where the thing which caused the injury complained of is shown to be
under the latters management and the accident is such that, in the ordinary course of
things, cannot be expected to happen if those who have its management or control use
proper care. It affords reasonable evidence, in the absence of explanation by the defendant,
that the accident arose from want of care.[19] It is not a rule of substantive law and, as such,
it does not create an independent ground of liability. Instead, it is regarded as a mode of
proof, or a mere procedural convenience since it furnishes a substitute for, and relieves the
plaintiff of, the burden of producing specific proof of negligence. The maxim simply places
on the defendant the burden of going forward with the proof.[20] Resort to the doctrine,
however, may be allowed only when (a) the event is of a kind which does not ordinarily
occur in the absence of negligence; (b) other responsible causes, including the conduct of
the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the
indicated negligence is within the scope of the defendant's duty to the plaintiff.[21] Thus, it
is not applicable when an unexplained accident may be attributable to one of several
causes, for some of which the defendant could not be responsible.[22]
Res ipsa loquitur generally finds relevance whether or not a contractual relationship exists
between the plaintiff and the defendant, for the inference of negligence arises from the
circumstances and nature of the occurrence and not from the nature of the relation of the
parties.[23] Nevertheless, the requirement that responsible causes other than those due to
defendants conduct must first be eliminated, for the doctrine to apply, should be
understood as being confined only to cases of pure (non-contractual) tort since obviously
the presumption of negligence in culpa contractual, as previously so pointed out,
immediately attaches by a failure of the covenant or its tenor. In the case of the truck driver,
whose liability in a civil action is predicated on culpa acquiliana, while he admittedly can be
said to have been in control and management of the vehicle which figured in the accident,
it is not equally shown, however, that the accident could have been exclusively due to his
negligence, a matter that can allow, forthwith, res ipsa loquitur to work against him.
If a demurrer to evidence is granted but on appeal the order of dismissal is reversed, the
movant shall be deemed to have waived the right to present evidence.[24] Thus,
respondent corporation may no longer offer proof to establish that it has exercised due
care in transporting the cargoes of the assured so as to still warrant a remand of the case to
the trial court.

WHEREFORE, the order, dated 30 April 1996, of the Regional Trial Court, Branch 66, of
Makati City, and the decision, dated 10 June 1999, of the Court of Appeals, are AFFIRMED
only insofar as respondent Lambert M. Eroles is concerned, but said assailed order of the
trial court and decision of the appellate court are REVERSED as regards G.P. Sarmiento
Trucking Corporation which, instead, is hereby ordered to pay FGU Insurance Corporation
the value of the damaged and lost cargoes in the amount of P204,450.00. No costs.

SO ORDERED.