Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-10126 October 22, 1957 SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA VDA. DE BATACLAN, plaintiffs-appellants, vs. MARIANO MEDINA, defendant-appellant. Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants. Fortunato Jose for defendant and appellant. MONTEMAYOR, J.: Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by its owner defendant Mariano Medina under a certificate of public convenience, left the town of Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There were about eighteen passengers, including the driver and conductor. Among the passengers were Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, sated to the right of Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called Visaya, apparently not knowing his name, seated in the left side of the driver, and a woman named Natalia Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same morning, while the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst and the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the road and turned turtle. Some of the passengers managed to leave the bus the best way they could, others had to be helped or pulled out, while the three passengers seated beside the driver, named Bataclan, Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get out of the overturned bus. Some of the passengers, after they had clambered up to the road, heard groans and moans from inside the bus, particularly, shouts for help from Bataclan and Lara, who said they could not get out of the bus. There is nothing in the evidence to show whether or not the passengers already free from the wreck, including the driver and the conductor, made any attempt to pull out or extricate and rescue the four passengers trapped inside the vehicle, but calls or shouts for help were made to the houses in the neighborhood. After half an hour, came about ten men, one of them carrying a lighted torch made of bamboo with a wick on one end, evidently fueled with petroleum. These men presumably approach the overturned bus, and almost immediately, a fierce fire started, burning and all but consuming the bus, including the four passengers trapped inside it. It would appear that as the bus overturned, gasoline began to leak and escape from the gasoline tank on the side of the chassis, spreading over and permeating the body of the bus and the ground under and around it, and that the lighted torch brought by one of the men who answered the call for help set it on fire. That same day, the charred bodies of the four deemed passengers inside the bus were removed and duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her name and in behalf of her five minor children, brought the present suit to recover from Mariano Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600 as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the Court of Appeals, but the latter endorsed the appeal to us because of the value involved in the claim in the complaint. Our new Civil Code amply provides for the responsibility of common carrier to its passengers and their goods. For purposes of reference, we are reproducing the pertinent codal provisions: ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case. Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756. ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances. ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755 ART. 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the former's employees, although such employees may have acted beyond the scope of their authority or in violation of the order of the common carriers. This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees. ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of the willful acts or negligence of other passengers or of strangers, if the common carrier's employees through the exercise of the diligence of a good father of a family could have prevented or stopped the act or omission. We agree with the trial court that the case involves a breach of contract of transportation for hire, the Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We also agree with the trial court that there was negligence on the part of the defendant, through his agent, the driver Saylon. There is evidence to show that at the time of the blow out, the bus was speeding, as testified to by one of the passengers, and as shown by the fact that according to the testimony of the witnesses, including that of the defense, from the point where one of the front tires burst up to the canal where the bus overturned after zig-zaging, there was a distance of about 150 meters. The chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but because of the velocity at which the bus must have been running, its momentum carried it over a distance of 150 meters before it fell into the canal and turned turtle. There is no question that under the circumstances, the defendant carrier is liable. The only question is to what degree. The trial court was of the opinion that the proximate cause of the death of Bataclan was not the overturning of the bus, but rather, the fire that burned the bus, including himself and his copassengers who were unable to leave it; that at the time the fire started, Bataclan, though he must have suffered physical injuries, perhaps serious, was still alive, and so damages were awarded, not for his death, but for the physical injuries suffered by him. We disagree. A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows: . . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.' And more comprehensively, 'the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing him physical injuries, if through some event, unexpected and extraordinary, the overturned bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire, and the passenger is burned to death, one might still contend that the proximate cause of his death was the fire and not the overturning of the vehicle. But in the present case under the circumstances obtaining in the same, we do not hesitate to hold that the proximate cause was the overturning of the bus, this for the reason that when the vehicle turned not only on its side but completely on its back, the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of the men with a lighted torch was in response to the call for help, made not only by the passengers, but most probably, by the driver and the conductor themselves, and that because it was dark (about 2:30 in the morning), the rescuers had to carry a light with them, and coming as they did from a rural area where lanterns and flashlights were not available; and what was more natural than that said rescuers should innocently approach the vehicle to extend the aid and effect the rescue requested from them. In other words, the coming of the men with a torch was to be expected and was a natural sequence of the overturning of the bus, the trapping of some of its passengers and the call for outside help. What is more, the burning of the bus can also in part be attributed to the negligence of the carrier, through is driver and its conductor. According to the witness, the driver and the conductor were on the road walking back and forth. They, or at least, the driver should and must have known that in the position in which the overturned bus was, gasoline could and must have leaked from the gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when spilled, specially over a large area, can be smelt and directed even from a distance, and yet neither the driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not to bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier come under the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763. As regard the damages to which plaintiffs are entitled, considering the earning capacity of the deceased, as well as the other elements entering into a damage award, we are satisfied that the amount of SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to include compensatory, moral, and other damages. We also believe that plaintiffs are entitled to attorney's fees, and assessing the legal services rendered by plaintiffs' attorneys not only in the trial court, but also in the course of the appeal, and not losing sight of the able briefs prepared by them, the attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of merchandise carried by the deceased in the bus, is adequate and will not be disturbed. There is one phase of this case which disturbs if it does not shock us. According to the evidence, one of the passengers who, because of the injuries suffered by her, was hospitalized, and while in the hospital, she was visited by the defendant Mariano Medina, and in the course of his visit, she overheard him speaking to one of his bus inspectors, telling said inspector to have the tires of the bus changed immediately because they were already old, and that as a matter of fact, he had been telling the driver to change the said tires, but that the driver did not follow his instructions. If this be true, it goes to prove that the driver had not been diligent and had not taken the necessary precautions to insure the safety of his passengers. Had he changed the tires, specially those in front, with new ones, as he had been instructed to do, probably, despite his speeding, as we have already stated, the blow out would not have occurred. All in all, there is reason to believe that the driver operated and drove his vehicle negligently, resulting in the death of four of his passengers, physical injuries to others, and the complete loss and destruction of their goods, and yet the criminal case against him, on motion of the fiscal and with his consent, was provisionally dismissed, because according to the fiscal, the witnesses on whose testimony he was banking to support the complaint, either failed or appear or were reluctant to testify. But the record of the case before us shows the several witnesses, passengers, in that bus, willingly and unhesitatingly testified in court to the effect of the said driver was negligent. In the public interest the prosecution of said erring driver should be pursued, this, not only as a matter of justice, but for the promotion of the safety of passengers on public utility buses. Let a copy of this decision be furnished the Department of Justice and the Provincial Fiscal of Cavite. In view of the foregoing, with the modification that the damages awarded by the trial court are increased from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the attorney's fees, respectively, the decision appealed is from hereby affirmed, with costs. Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Endencia, and Felix, JJ., concur EN BANC [G.R. No. 130068. October 1, 1998] FAR EASTERN SHIPPING COMPANY, petitioner, vs. COURT OF APPELAS and PHILIPPINE PORTS AUTHORITY, respondents. [G.R. No. 130150. October 1, 1998] MANILA PILOTS ASSOCIATION, petitioner, vs. PHILIPPINE PORTS AUTHORITY and FAR EASTERN SHIPPING COMPANY, respondents. DECISION REGALADO, J.: These consolidated petitions for review on certiorari seek in unison to annul and set aside the decision[1] of respondent Court of Appeals of November 15, 1996 and its resolution[2] dated July 31, 1997 in CA-G.R. CV No. 24072, entitled “Philippine Ports Authority, Plaintiff-Appellee vs. Far Eastern Shipping Company, Senen C. Gavino and Manila Pilots’ Association. Defendants-Appellants,” which affirmed with modification the judgment of the trial court holding the defendants-appellants therein solidarily liable for damages in favor of herein private respondent. There is no dispute about the facts as found by the appellate court, thus -x x x On June 20, 1980, the M/V PAVLODAR, flying under the flagship of the USSR, owned and operated by the Far Eastern Shipping Company (FESC for brevity’s sake), arrived at the Port of Manila from Vancouver, British Columbia at about 7:00 o’clock in the morning. The vessel was assigned Berth 4 of the Manila International Port, as its berthing space. Captain Roberto Abellana was tasked by the Philippine Port Authority to supervise the berthing of the vessel. Appellant Senen Gavino was assigned by the appellant Manila Pilot’s Association (MPA for brevity’s sake) to conduct docking maneuvers for the safe berthing of the vessel to Berth No. 4. Gavino boarded the vessel at the quarantine anchorage and stationed himself in the bridge, with the master of the vessel, Victor Kavankov, beside him. After a briefing of Gavino by Kavankov of the particulars of the vessel and its cargo, the vessel lifted anchor from the quarantine anchorage and proceeded to the Manila International Port. The sea was calm and the wind was ideal for docking maneuvers. When the vessel reached the landmark (the big church by the Tondo North Harbor) one-half mile from the pier, Gavino ordered the engine stopped. When the vessel was already about 2,000 feet from the pier, Gavino ordered the anchor dropped. Kavankov relayed the orders to the crew of the vessel on the bow. The left anchor, with two (2) shackles were dropped. However, the anchor did not take hold as expected. The speed of the vessel did not slacken. A commotion ensued between the crew members. A brief conference ensued between Kavankov and the crew members. When Gavino inquired what was all the commotion about, Kavankov assured Gavino that there was nothing of it. After Gavino noticed that the anchor did not take hold, he ordered the engines half-astern. Abellana, who was then on the pier apron, noticed that the vessel was approaching the pier fast. Kavankov likewise noticed that the anchor did not take hold. Gavino thereafter gave the “full-astern” code. Before the right anchor and additional shackles could be dropped, the bow of the vessel rammed into the apron of the pier causing considerable damage to the pier. The vessel sustained damage too. (Exhibit “7-Far Eastern Shipping”). Kavankov filed his sea protest (Exhibit “1-Vessel”). Gavino submitted his report to the Chief Pilot (Exhibit “1-Pilot”) who referred the report to the Philippine Ports Authority (Exhibit “2-Pilot”) Abellana likewise submitted his report of the incident (Exhibit “B”). Per contract and supplemental contract of the Philippine Ports Authority and the contractor for the rehabilitation of the damaged pier, the same cost the Philippine Ports Authority the amount of P1,126,132.25 (Exhibits “D” and “E”).[3] On January 10, 1983, the Philippine Ports Authority (PPA, for brevity), through the Solicitor General, filed before the Regional Trial Court of Manila, Branch 39, a complaint for a sum of money against Far Eastern Shipping Co., Capt. Senen C. Gavino and the Manila Pilots’ Association, docketed as Civil Case No. 83-14958,[4] praying that the defendants therein be held jointly and severally liable to pay the plaintiff actual and exemplary damages plus costs of suit. In a decision dated August 1, 1985, the trial court ordered the defendants therein jointly and severally to pay the PPA the amount of P1,053,300.00 representing actual damages and the cost of suit.[5] The defendants appealed to the Court of Appeals and raised the following issues: (1) Is the pilot of a commercial vessel, under compulsory pilotage, solely liable for the damage caused by the vessel to the pier, at the port of destination, for his negligence? And (2) Would the owner of the vessel be liable likewise if the damage is caused by the concurrent negligence of the master of vessel and the pilot under a compulsory pilotage? As stated at the outset, respondent appellate court affirmed the findings of the court a quo except that it found no employer-employee relationship existing between herein private respondents Manila Pilots’ Association (MPA, for short) and Capt. Gavino.[6] This being so, it ruled instead that the liability of MPA is anchored, not on Article 2180 of the Civil Code, but on the provisions of Customs Administrative Order No. 15-65,[7] and accordingly modified said decision of the trial court by holding MPA, along with its co-defendants therein, still solidarily liable to PPA but entitled MPA to reimbursement from Capt. Gavino for such amount of the adjudged pecuniary liability in excess of the amount equivalent to seventy-five percent (75%) of its prescribed reserve fund.[8] Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with the decision of the Court of Appeals and both of them elevated their respective plaints to us via separate petitions for review on certiorari. In G.R. No. 130068, which was assigned to the Second Division of this Court, FESC imputed that the Court of Appeals seriously erred: 1. in not holding Senen C. Gavino and the Manila Pilots’ Association as the parties solely responsible for the resulting damages sustained by the pier deliberately ignoring the established jurisprudence on the matter. 2. in holding that the master had not exercised the required diligence demanded from him by the circumstances at the time the incident happened; 3. in affirming the amount of damages sustained by the respondent Philippine Ports Authority despite a strong and convincing evidence that the amount is clearly exorbitant and unreasonable; 4. in not awarding any amount of counterclaim prayed for by the petitioner in its answer; and 5. in not granting herein petitioner's claim against pilot Senen C. Gavino and Manila Pilots' Association in the event that it be held liable.[9] Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage at the time of the incident, it was a compulsory pilot, Capt. Gavino, who was in command and had complete control in the navigation and docking of the vessel. It is the pilot who supersedes the master for the time being in the command and navigation of a ship and his orders must be obeyed in all respects connected with her navigation. Consequently, he was solely responsible for the damage caused upon the pier apron, and not the owners of the vessel. It claims that the master of the boat did not commit any act of negligence when he failed to countermand or overrule the orders of the pilot because he did not see any justifiable reason to do so. In other words, the master cannot be faulted for relying absolutely on the competence of the compulsory pilot. If the master does not observe that a compulsory pilot is incompetent or physically incapacitated, the master is justified in relying on the pilot.[10] Respondent PPA, in its comment, predictably in full agreement with the ruling of respondent court on the solidary liability of FESC, MPA and Capt. Gavino, stresses the concurrent negligence of Capt. Gavino, the harbor pilot, and Capt. Viktor Kabankov,* shipmaster of MV Pavlodar, as the basis of their solidary liability for damages sustained by PPA. It posits that the vessel was being piloted by Capt. Gavino with Capt. Kabankov beside him all the while on the bridge of the vessel, as the former took over the helm of MV Pavlodar when it rammed and damaged the apron of the pier of Berth No. 4 of the Manila International Port. Their concurrent negligence was the immediate and proximate cause of the collision between the vessel and the pier - Capt. Gavino, for his negligence in the conduct of docking maneuvers for the safe berthing of the vessel; and Capt. Kabankov, for failing to countermand the orders of the harbor pilot and to take over and steer the vessel himself in the face of imminent danger, as well as for merely relying on Capt. Gavino during the berthing procedure.[11] On the other hand, in G.R. No. 130150, originally assigned to the Court's First Division and later transferred to the Third Division, MPA, now as petitioner in this case, avers the respondent court's errors consisted in disregarding and misinterpreting Customs Administrative Order No. 15-65 which limits the liability of MPA. Said pilots' association asseverates that it should not be held solidarily liable with Capt. Gavino who, as held by respondent court, is only a member, not an employee, thereof. There being no employer-employee relationship, neither can MPA be held liable for any vicarious liability for the respective exercise of profession by its members nor be considered a joint tortfeasor as to be held jointly and severally liable.[12] It further argues that there was erroneous reliance on Customs Administrative Order No. 15-65 and the constitution and by-laws of MPA, instead of the provisions of the Civil Code on damages which, being a substantive law, is higher in category than the aforesaid constitution and by-laws of a professional organization or an administrative order which bears no provision classifying the nature of the liability of MPA for the negligence its member pilots.[13] As for Capt. Gavino, counsel for MPA states that the former had retired from active pilotage services since July 28, 1994 and has ceased to be a member of petitioner pilots' association. He is not joined as a petitioner in this case since his whereabouts are unknown.[14] FESC's comment thereto relied on the competence of the Court of Appeals in construing provisions of law or administrative orders as basis for ascertaining the liability of MPA, and expressed full accord with the appellate court's holding of solidary liability among itself, MPA and Capt. Gavino. It further avers that the disputed provisions of Customs Administrative Order No. 15-65 clearly established MPA's solidary liability.[15] On the other hand, public respondent PPA, likewise through representations by the Solicitor General, assumes the same supportive stance it took in G.R. No. 130068 in declaring its total accord with the ruling of the Court of Appeals that MPA is solidarily liable with Capt. Gavino and FESC for damages, and in its application to the fullest extent of the provisions of Customs Administrative Order No. 15-65 in relation to MPA's constitution and by-laws which spell out the conditions of and govern their respective liabilities. These provisions are clear and ambiguous as regards MPA's liability without need for interpretation or construction. Although Customs Administrative Order No. 15-65 is a mere regulation issued by an administrative agency pursuant to delegated legislative authority to fix details to implement the law, it is legally binding and has the same statutory force as any valid statute.[16] Upon motion[17] by FESC dated April 24, 1998 in G.R. No. 130150, said case was consolidated with G.R. No. 130068.[18] Prefatorily, on matters of compliance with procedural requirements, it must be mentioned that the conduct of the respective counsel for FESC and PPA leaves much to be desired, to the displeasure and disappointment of this Court. Section 2, Rule 42 of the 1997 Rules of Civil Procedure[19] incorporates the former Circular No. 28-91 which provided for what has come to be known as the certification against forum shopping as an additional requisite for petitions filed with the Supreme Court and the Court of Appeals, aside from the other requirements contained in pertinent provisions of the Rules of Court therefor, with the end in view of preventing the filing of multiple complaints involving the same issues in the Supreme Court, Court of Appeals or different divisions thereof or any other tribunal or agency. More particularly, the second paragraph of Section 2, Rule 42 provides: xxx xxx xxx The petitioner shall also submit together with the petition a certification under oath that he has not therefore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. (Italics supplied.) For petitions for review filed before the Supreme Court, Section 4(e), Rule 45 specifically requires that such petition shall contain a sworn certification against forum shopping as provided in the last paragraph of Section 2, Rule 42. The records show that the law firm of Del Rosario and Del Rosario through its associate, Atty. Herbert A. Tria, is the counsel of record for FESC in both G.R. No. 130068 and G.R. No. 130150. G.R. No. 130068, which is assigned to the Court's Second Division, commenced with the filing by FESC through counsel on August 22, 1997 of a verified motion for extension of time to file its petition for thirty (30) days from August 28, 1997 or until September 27, 1997.[20] Said motion contained the following certification against forum shopping[21] signed by Atty. Herbert A. Tria as affiant: CERTIFICATION AGAINST FORUM SHOPPING I/we hereby certify that I/we have not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that to the best of my own knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that if I/we should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I/we undertake to report that fact within five (5) days therefrom to this Honorable Court. This motion having been granted, FESC subsequently filed its petition on September 26, 1997, this time bearing a "verification and certification against forum-shopping" executed by one Teodoro P. Lopez on September 24, 1997,[22] to wit: VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING in compliance with Section 4(e), Rule 45 in relation to Section 2, Rule 42 of the Revised Rules of Civil Procedure I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and state: 1. That I am the Manager, Claims Department of Filsov Shipping Company, the local agent of petitioner in this case. 2. That I have caused the preparation of this Petition for Review on Certiorari. 3. That I have read the same and the allegations therein contained are true and correct based on the records of this case. 4. That I certify that petitioner has not commenced any other action or proceeding involving the same issues in the Supreme Court or Court of Appeals, or any other tribunal or agency, that to the best of my own knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals or any other tribunal or agency, that I should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I undertake to report the fact within five (5) days therefrom to this Honorable Court. (Italics supplied for emphasis.) Reviewing the records, we find that the petition filed by MPA in G.R. No. 130150 then pending with the Third Division was duly filed on August 29, 1997 with a copy thereof furnished on the same date by registered mail to counsel for FESC.[23] Counsel of record for MPA, Atty. Jesus P. Amparo, in his verification accompanying said petition dutifully revealed to the Court that-xxx xxx xxx 3. Petitioner has not commenced any other action or proceeding involving the same issues in his Honorable Court, the Court of Appeals or different Divisions thereof, or any other tribunal or agency, but to the best of his knowledge, there is an action or proceeding pending in this Honorable Court, entitled Far Eastern Shipping Co., Petitioner, vs. Philippine Ports Authority and Court of Appeals with a Motion for Extension of time to file Petition for Review by Certiorari filed sometime on August 18, 1997. If undersigned counsel will come to know of any other pending action or claim filed or pending he undertakes to report such fact within five (5) days to this Honorable Court.[24] (Italics supplied.) Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered mail on August 29, 1997 and taking judicial notice of the average period of time it takes local mail to reach its destination, by reasonable estimation it would be fair to conclude that when FESC filed its petition in G.R. No. 130068 on September 26, 1997, it would already have received a copy of the former and would then have knowledge of the pendency of the other petition initially filed with the First Division. It was therefore incumbent upon FESC to inform the Court of that fact through its certification against forum shopping. For failure to make such disclosure, it would appear that the aforequoted certification accompanying the petition in G.R. No. 130068 is defective and could have been a ground for dismissal thereof. Even assuming that FESC has not yet received its copy of MPA's petition at the time it filed its own petition and executed said certification, its signatory did state "that if I should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals or any other tribunal or agency, I undertake to report the fact within five (5) days therefrom in this Honorable Court."[25] Scouring the records page by page in this case, we find that no manifestation concordant with such undertaking was then or at any other time thereafter ever filed by FESC nor was there any attempt to bring such matter to the attention of the Court. Moreover, it cannot feign non-knowledge of the existence of such other petition because FESC itself filed the motion for consolidation in G.R. No. 130150 of these two cases on April 24, 1998. It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del Rosario, displays an unprofessional tendency of taking the Rules for granted, in this instance exemplified by its pro forma compliance therewith but apparently without full comprehension of and with less than faithful commitment to its undertakings to this Court in the interest of just, speedy and orderly administration of court proceedings. As between the lawyer and the courts, a lawyer owes candor, fairness and good faith to the court. [26] He is an officer of the court exercising a privilege which is indispensable in the administration of justice.[27] Candidness, especially towards the courts, is essential for the expeditious administration of justice. Courts are entitled to expect only complete honesty from lawyers appearing and pleading before them.[28] Candor in all dealings is the very essence of honorable membership in the legal profession.[29] More specifically, a lawyer is obliged to observe the rules of procedure and not to misuse them to defeat the ends of justice.[30] It behooves a lawyer, therefore, to exert every effort and consider it his duty to assist in the speedy and efficient administration of justice.[31] Being an officer of the court, a lawyer has a responsibility in the proper administration of justice. Like the court itself, he is an instrument to advance its ends -- the speedy, efficient, impartial, correct and inexpensive adjudication of cases and the prompt satisfaction of final judgments. A lawyer should not only help attain these objectives but should likewise avoid any unethical or improper practices that impede, obstruct or prevent their realization, charged as he is with the primary task of assisting in the speedy and efficient administration of justice.[32] Sad to say, the members of said law firm sorely failed to observe their duties as responsible members of the Bar. Their actuations are indicative of their predisposition to take lightly the avowed duties of officers of the Court to promote respect for law and for legal processes.[33] We cannot allow this state of things to pass judicial muster. In view of the fact that at around the time these petitions were commenced, the 1997 Rules of Civil Procedure had just taken effect, the Court treated infractions of the new Rules then with relative liberality in evaluating full compliance therewith. Nevertheless, it would do well to remind all concerned that the penal provisions of Circular No. 28-91 which remain operative provides, inter alia: 3. Penalties.xxx xxx xxx (c) The submission of a false certification under Par. 2 of the Circular shall likewise constitute contempt of court, without prejudice to the filing of criminal action against the guilty party. The lawyer may also be subjected to disciplinary proceedings. It must be stressed that the certification against forum shopping ordained under the Rules is to be executed by the petitioner, and not by counsel. Obviously it is the petitioner, and not always the counsel whose professional services have been retained for a particular case, who is in the best position to know whether he or it actually filed or caused the filing of a petition in that case. Hence, a certification against forum shopping by counsel is a defective certification. It is clearly equivalent to non-compliance with the requirement under Section 2, Rule 42 in relation to Section 4, Rule 45, and constitutes a valid cause for dismissal of the petition. Hence, the initial certification appended to the motion for extension of time to file petition n G.R. No. 130068 executed in behalf of FESC by Atty. Tria is procedurally deficient. But considering that it was a superfluity at that stage of the proceeding, it being unnecessary to file such a certification with a mere motion for extension, we shall disregard such error. Besides, the certification subsequently executed by Teodoro P. Lopez in behalf of FESC cures that defect to a certain extent, despite the inaccuracies earlier pointed out. In the same vein, we shall consider the verification signed in behalf of MPA by its counsel, Atty. Amparo, in G.R. No. 130150 as substantial compliance inasmuch as it served the purpose of the Rules of informing the Court of the pendency of another action or proceeding involving the same issues. It bears stressing that procedural rules are instruments in the speedy and efficient administration of justice. They should be used to achieve such end and not to derail it.[34] Counsel for PPA did not make matters any better. Despite the fact that, save for the Solicitor General at the time, the same legal team of the Office of the Solicitor General (OSG, for short) composed of Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon, with the addition of Assistant Solicitor General Pio C. Guerrero very much later in the proceedings, represented PPA throughout the appellate proceedings in both G.R. No. 130068 and G.R. No. 130150 and was presumably fully acquainted with the facts and issues of the case, it took the OSG an inordinately and almost unreasonably long period of time to file its comment, thus unduly delaying the resolution of these cases. It took several changes of leadership in the OSG -- from Silvestre H. Bello III to Romeo C. dela Cruz and, finally, Ricardo P. Galvez -- before the comment in behalf of PPA was finally filed. In G.R. No. 130068, it took eight (8) motions for extension of time totaling 210 days, a warning that no further extensions shall be granted, and personal service on the Solicitor General himself of the resolution requiring the filing of such comment before the OSG indulged the Court with the long required comment on July 10, 1998.[35] This, despite the fact that said office was required to file its comment way back on November 12, 1997.[36] A closer scrutiny of the records likewise indicates that petitioner FESC was not even furnished a copy of said comment as required by Section 5, Rule 42. Instead, a copy thereof was inadvertently furnished to MPA which, from the point of view of G.R. No. 130068, was a nonparty.[37] The OSG fared slightly better in G.R. No. 130150 in that it took only six (6) extensions, or a total of 180 days, before the comment was finally filed.[38] And while it properly furnished petitioner MPA with a copy of its comment, it would have been more desirable and expedient in this case to have furnished its therein co-respondent FESC with a copy thereof, if only as a matter of professional courtesy.[39] This undeniably dilatory disinclination of the OSG to seasonably file required pleadings constitutes deplorable disservice to the tax-paying public and can only be categorized as censurable inefficiency on the part of the government law office. This is most certainly professionally unbecoming of the OSG. Another thing that baffles the Court is why the OSG did not take the initiative of filing a motion for consolidation in either G.R. No. 130068 or G.R. No. 130150, considering its familiarity with the background of the case and if only to make its job easier by having to prepare and file only one comment. It could not have been unaware of the pendency of one or the other petition because, being counsel for respondent in both cases, petitioner is required to furnish it with a copy of the petition under pain of dismissal of the petition for failure otherwise.[40] Besides, in G.R. 130068, it prefaces its discussions thus -Incidentally, the Manila Pilots' Association (MPA), one of the defendants-appellants in the case before the respondent Court of Appeals, has taken a separate appeal from the said decision to this Honorable Court, which was docketed as G.R. No. 130150 and entitled "Manila Pilots' Association, Petitioner, versus Philippine Ports Authority and Far Eastern Shipping Co., Respondents.[41] Similarly, in G.R. No. 130150, it states Incidentally, respondent Far Eastern Shipping Co. (FESC) had also taken an appeal from the said decision to this Honorable Court, docketed as G.R. No. 130068, entitled "Far Eastern Shipping Co. vs. Court of Appeals and Philippine Ports Authority."[42] We find here a lackadaisical attitude and complacency on the part of the OSG in the handling of its cases and an almost reflexive propensity to move for countless extensions, as if to test the patience of the Court, before favoring it with the timely submission of required pleadings. It must be emphasized that the Court can resolve cases only as fast as the respective parties in a case file the necessary pleadings. The OSG, be needlessly extending the pendency of these cases through its numerous motions for extension, came very close to exhausting this Court's forbearance and has regrettably fallen short of its duties as the People's Tribune. The OSG is reminded that just like other members of the Bar, the canons under the Code of Professional Responsibility apply with equal force on lawyers in government service in the discharge of their official tasks.[43] These ethical duties are rendered even more exacting as to them because, as government counsel, they have the added duty to abide by the policy of the State to promote a high standard of ethics in public service.[44] Furthermore, it is incumbent upon the OSG, as part of the government bureaucracy, to perform and discharge its duties with the highest degree of professionalism, intelligence and skill[45] and to extend prompt, courteous and adequate service to the public.[46] Now, on the merits of the case. After a judicious examination of the records of this case, the pleadings filed, and the evidence presented by the parties in the two petitions, we find no cogent reason to reverse and set aside the questioned decision. While not entirely a case of first impression, we shall discuss the issues seriatim and, correlatively by way of a judicial once-over, inasmuch as the matters raised in both petitions beg for validation and updating of well worn maritime jurisprudence. Thereby, we shall write finis to the endless finger-pointing in this shipping mishap which has been stretched beyond the limits of judicial tolerance. The Port of Manila is within the Manila Pilotage District which is under compulsory pilotage pursuant to Section 8, Article III of Philippine Ports Authority Administrative Order No. 03-85,[47] which provides that: SEC. 8. Compulsory Pilotage Service.- For entering a harbor and anchoring thereat, or passing through rivers or straits within a pilotage district, as well as docking and undocking at any pier/wharf, or shifting from one berth or another, every vessel engaged in coastwise and foreign trade shall be under compulsory pilotage. x x x In case of compulsory pilotage, the respective duties and responsibilities of the compulsory pilot and the master have been specified by the same regulation in this wise: SEC. 11. Control of vessels and liability for damage. - On compulsory pilotage grounds, the Harbor Pilot, providing the service to a vessel shall be responsible for the damage caused to a vessel or to life and property at ports due to his negligence or fault. He can only be absolved from liability if the accident is caused by force majeure or natural calamities provided he has exercised prudence and extra diligence to prevent or minimize damage. The Master shall retain overall command of the vessel even on pilotage grounds whereby he can countermand or overrule the order or command of the Harbor Pilot on board. In such event, any damage caused to a vessel or to life and property at ports by reason of the fault or negligence of the Master shall be the responsibility and liability of the registered owner of the vessel concerned without prejudice to recourse against said Master. Such liability of the owner or Master of the vessel or its pilots shall be determined by competent authority in appropriate proceedings in the light of the facts and circumstances of each particular case. SEC. 32. Duties and responsibilities of the Pilot or Pilots' Association. - The duties and responsibilities of the Harbor Pilot shall be as follows: xxx xxx xxx f) a pilot shall be held responsible for the direction of a vessel from the time he assumes his work as a pilot thereof until he leaves it anchored or berthed safely; Provided, however, that his responsibility shall cease at the moment the Master neglects or refuses to carry out his order. Customs Administrative Order No. 15-65 issued twenty years earlier likewise provided in Chapter I thereof for the responsibilities of pilots: Par. XXXIX. - A Pilot shall be held responsible for the direction of a vessel from the time he assumes control thereof until he leaves it anchored free from shoal; Provided, That his responsibility shall cease at the moment the master neglects or refuses to carry out his instructions. xxx xxx xxx Par. XLIV. - Pilots shall properly and safely secure or anchor vessels under their control when requested to do so by the master of such vessels. I. G.R. No. 130068 Petitioner FESC faults the respondent court with serious error in not holding MPA and Capt. Gavino solely responsible for the damages caused to the pier. It avers that since the vessel was under compulsory pilotage at the time with Capt. Gavino in command and having exclusive control of the vessel during the docking maneuvers, then the latter should be responsible for damages caused to the pier.[48] It likewise holds the appellate court in error for holding that the master of the ship, Capt. Kabankov, did not exercise the required diligence demanded by the circumstances.[49] We start our discussion of the successive issues bearing in mind the evidentiary rule in American jurisprudence that there is a presumption of fault against a moving vessel that strikes a stationary object such as a dock or navigational aid. In admiralty, this presumption does more than merely require the ship to go forward and produce some evidence on the presumptive matter. The moving vessel must show that it was without fault or that the collision was occasioned by the fault of the stationary object or was the result of inevitable accident. It has been held that such vessel must exhaust every reasonable possibility which the circumstances admit and show that in each, they did all that reasonable care required.[50] In the absence of sufficient proof in rebuttal, the presumption of fault attaches to a moving vessel which collides with a fixed object and makes a prima facie case of fault against the vessel.[51] Logic and experience support this presumption: The common sense behind the rule makes the burden a heavy one. Such accidents simply do not occur in the ordinary course of things unless the vessel has been mismanaged in some way. It is not sufficient for the respondent to produce witnesses who testify that as soon as the danger became apparent everything possible was done to avoid an accident. The question remains, How then did the collision occur? The answer must be either that, in spite of the testimony of the witnesses, what was done was too little or too late or, if not, then the vessel was at fault for being in a position in which an unavoidable collision would occur.[52] The task, therefore, in these cases is to pinpoint who was negligent - the master of the ship, the harbor pilot or both. A pilot, in maritime law, is a person duly qualified, and licensed, to conduct a vessel into or out of ports, or in certain waters. In a broad sense, the term "pilot" includes both (1) those whose duty it is to guide vessels into or out of ports, or in particular waters and (2) those entrusted with the navigation of vessels on the high seas.[53] However, the term "pilot" is more generally understood as a person taken on board at a particular place for the purpose of conducting a ship through a river, road or channel, or from a port.[54] Under English and American authorities, generally speaking, the pilot supersedes the master for the time being in the command and navigation of the ship, and his orders must be obeyed in all matters connected with her navigation. He becomes the master pro hac vice and should give all directions as to speed, course, stopping and reversing, anchoring, towing and the like. And when a licensed pilot is employed in a place where pilotage is compulsory, it is his duty to insist on having effective control of the vessel, or to decline to act as pilot. Under certain systems of foreign law, the pilot does not take entire charge of the vessel, but is deemed merely the adviser of the master, who retains command and control of the navigation even on localities where pilotage is compulsory.[55] It is quite common for states and localities to provide for compulsory pilotage, and safety laws have been enacted requiring vessels approaching their ports, with certain exceptions, to take on board pilots duly licensed under local law. The purpose of these laws is to create a body of seamen thoroughly acquainted with the harbor, to pilot vessels seeking to enter or depart, and thus protect life and property from the dangers of navigation.[56] In line with such established doctrines, Chapter II of Customs Administrative Order No. 15-65 prescribes the rules of compulsory pilotage in the covered pilotage districts, among which is the Manila Pilotage District, viz. -PARAGRAPH I. - Pilotage for entering a harbor and anchoring thereat, as well as docking and undocking in any pier or shifting from one berth to another shall be compulsory, except Government vessels and vessels of foreign governments entitled to courtesy, and other vessels engaged solely in river or harbor work, or in a daily ferry service between ports which shall be exempt from compulsory pilotage provisions of these regulations: provided, however, that compulsory pilotage shall not apply in pilotage districts whose optional pilotage is allowed under these regulations. Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into Berth 4 of the Manila International Port. Upon assuming such office as compulsory pilot, Capt. Gavino is held to the universally accepted high standards of care and diligence required of a pilot, whereby he assumes to have skill and knowledge in respect to navigation in the particular waters over which his license extends superior to and more to be trusted than that of the master.[57] A pilot should have a thorough knowledge of general and local regulations and physical conditions affecting the vessel in his charge and the waters for which he is licensed, such as a particular harbor or river. He is not held to the highest possible degree of skill and care, but must have and exercise the ordinary skill and care demanded by the circumstances, and usually shown by an expert in his profession. Under extraordinary circumstances, a pilot must exercise extraordinary care.[58] In Atlee vs. The Northwestern Union Packet Company ,[59] Mr. Justice Miller spelled out in great detail the duties of a pilot: x x x (T)he pilot of a river steamer, like the harbor pilot, is selected for his personal knowledge of the topography through which he steers his vessel. In the long course of a thousand miles in one of these rivers, he must be familiar with the appearance of the shore on each side of the river as he goes along. Its banks, towns, its landings, its houses and trees, are all landmarks by which he steers his vessel. The compass is of little use to him. He must know where the navigable channel is, in its relation to all these external objects, especially in the night. He must also be familiar with all dangers that are permanently located in the course of the river, as sand-bars, snags, sunken rocks or trees or abandoned vessels or barges. All this he must know and remember and avoid. To do this, he must be constantly informed of the changes in the current of the river, of the sand-bars newly made, of logs or snags, or other objects newly presented, against which his vessel might be injured. xxx xxx xxx It may be said that this is exacting a very high order of ability in a pilot. But when we consider the value of the lives and property committed to their control, for in this they are absolute masters, the high compensation they receive, the care which Congress has taken to secure by rigid and frequent examinations and renewal of licenses, this very class of skill, we do not think we fix the standard too high. Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to measure up to such strict standard of care and diligence required of pilots in the performance of their duties. Witness this testimony of Capt. Gavino: Court: You have testified before that the reason why the vessel bumped the pier was because the anchor was not released immediately or as soon as you have given the order. Do you remember having stated that? A Q Yes, your Honor. And you gave this order to the captain of the vessel? A Q Yes, your Honor. By that testimony, you are leading the Court to understand that is that anchor was released immediately at the time you gave the order, the incident would not have happened. Is that correct? Yes, sir, but actually it was only a presumption on my part because there was a commotion between the officers who are in charge of the dropping of the anchor and the captain. I could not understand their language, it was in Russian, so I presumed the anchor was not dropped on time. So, you are not sure whether it was really dropped on time or not? I am not sure, your Honor. xxx xxx xxx A Q A Q A You are not even sure what could have caused the incident. What factor could have caused the incident? Well, in this case now, because either the anchor was not dropped on time or the anchor did not hold, that was the cause of the incident, your Honor.[60] It is disconcertingly riddled with too much incertitude and manifests a seeming indifference for the possibly injurious consequences his commands as pilot may have. Prudence required that he, as pilot, should have made sure that his directions were promptly and strictly followed. As correctly noted by the trial court Moreover, assuming that he did indeed give the command to drop the anchor on time, as pilot he should have seen to it that the order was carried out, and he could have done this in a number of ways, one of which was to inspect the bow of the vessel where the anchor mechanism was installed. Of course, Captain Gavino makes reference to a commotion among the crew members which supposedly caused the delay in the execution of the command. This account was reflected in the pilot's report prepared four hours later, but Capt. Kavankov, while not admitting whether or not such a commotion occurred, maintained that the command to drop anchor was followed "immediately and precisely." Hence, the Court cannot give much weight or consideration to this portion of Gavino's testimony."[61] An act may be negligent if it is done without the competence that a reasonable person in the position of the actor would recognize as necessary to prevent it from creating an unreasonable risk of harm to another.[62] Those who undertake any work calling for special skills are required not only to exercise reasonable care in what they do but also possess a standard minimum of special knowledge and ability.[63] Every man who offers his services to another, and is employed, assumes to exercise in the employment such skills he possesses, with a reasonable degree of diligence. In all these employments where peculiar skill is requisite, if one offers his services he is understood as holding himself out to the public as possessing the degree of skill commonly possessed by others in the same employment, and if his pretensions are unfounded he commits a species of fraud on every man who employs him in reliance on his public profession.[64] Furthermore, there is an obligation on all persons to take the care which, under ordinary circumstances of the case, a reasonable and prudent man would take, and the omission of that care constitutes negligence.[65] Generally, the degree of care required is graduated according to the danger a person or property attendant upon the activity which the actor pursues or the instrumentality which he uses. The greater the danger the greater the degree of care required. What is ordinary under extraordinary of conditions is dictated by those conditions; extraordinary risk demands extraordinary care. Similarly, the more imminent the danger, the higher the degree of care.[66] We give our imprimatur to the bases for the conclusion of the Court of Appeals that Capt. Gavino was indeed negligent in the performance of his duties: xxx xxx xxx x x x As can be gleaned from the logbook, Gavino ordered the left anchor and two (2) shackles dropped at 8:30 o'clock in the morning. He ordered the engines of the vessel stopped at 8:31 o'clock. By then, Gavino must have realized that the anchor did not hit a hard object and was not clawed so as to reduce the momentum of the vessel. In point of fact, the vessel continued travelling towards the pier at the same speed. Gavino failed to react. At 8:32 o'clock, the two (2) tugboats began to push the stern part of the vessel from the port side but the momentum of the vessel was not contained. Still, Gavino did not react. He did not even order the other anchor and two (2) more shackles dropped to arrest the momentum of the vessel. Neither did he order full-astern. It was only at 8:34 o'clock, or four (4) minutes, after the anchor was dropped that Gavino reacted. But his reaction was even (haphazard) because instead of arresting fully the momentum of the vessel with the help of the tugboats, Gavino ordered merely "half-astern". It took Gavino another minute to order a "full-astern". By then, it was too late. The vessel's momentum could no longer be arrested and, barely a minute thereafter, the bow of the vessel hit the apron of the pier. Patently, Gavino miscalculated. He failed to react and undertake adequate measures to arrest fully the momentum of the vessel after the anchor failed to claw to the seabed. When he reacted, the same was even (haphazard). Gavino failed to reckon the bulk of the vessel, its size and its cargo. He erroneously believed that only one (1) anchor would suffice and even when the anchor failed to claw into the seabed or against a hard object in the seabed, Gavino failed to order the other anchor dropped immediately. His claim that the anchor was dropped when the vessel was only 1,000 feet from the pier is but a belated attempt to extricate himself from the quagmire of his own insouciance and negligence. In sum, then, Appellants' claim that the incident was caused by " force majeure" is barren of factual basis. xxx xxx xxx The harbor pilots are especially trained for this job. In the Philippines, one may not be a harbor pilot unless he passed the required examination and training conducted then by the Bureau of Custom, under Customs Administrative Order No. 15-65, now under the Philippine Ports Authority under PPA Administrative Order 63-85. Paragraph XXXIX of the Customs Administrative Order No. 15-65 provides that "the pilot shall be held responsible for the direction of the vessel from the time he assumes control thereof, until he leaves it anchored free from shoal: Provided, that his responsibility shall cease at the moment the master neglects or refuse(s) to carry out his instructions." The overall direction regarding the procedure for docking and undocking the vessel emanates from the harbor pilot. In the present recourse, Gavino failed to live up to his responsibilities and exercise reasonable care or that degree of care required by the exigencies of the occasion. Failure on his part to exercise the degree of care demanded by the circumstances is negligence (Reese versus Philadelphia & RR Co. 239 US 463, 60 L ed. 384, 57 Am Jur. 2d 12age 418).[67] This affirms the findings of the trial court regarding Capt. Gavino's negligence: This discussion should not however, divert the court from the fact that negligence in manuevering the vessel must be attributed to Capt. Senen Gavino. He was an experienced pilot and by this time should have long familiarized himself with the depth of the port and the distance he could keep between the vessel and port in order to berth safely.[68] The negligence on the part of Capt. Gavino is evident; but Capt. Kabankov is no less responsible for the allision. His unconcerned lethargy as master of the ship in the face of troublous exigence constitutes negligence. While it is indubitable that in exercising his functions a pilot-is in sole command of the ship[69] and supersedes the master for the time being in the command and navigation of a ship and that he becomes master pro hac vice of a vessel piloted by him,[70] there is overwhelming authority to the effect that the master does not surrender his vessel to the pilot and the pilot is not the master. The master is still in command of the vessel notwithstanding the presence of a pilot. There are occasions when the master may and should interfere and even displace the pilot, as when the pilot is obviously incompetent or intoxicated and the circumstances may require the master to displace a compulsory pilot because of incompetency or physical incapacity. If, however, the master does not observe that a compulsory pilot is incompetent or physically incapacitated, the master is justified in relying on the pilot, but not blindly.[71] The master is not wholly absolved from his duties while a pilot is on board his vessel, and may advise with or offer suggestions to him. He is still in command of the vessel, except so far as her navigation is concerned, and must cause the ordinary work of the vessel to be properly carried on and the usual precaution taken. Thus, in particular, he is bound to see that there is sufficient watch on deck, and that the men are attentive to their duties, also that engines are stopped, towlines cast off, and the anchors clear and ready to go at the pilot's order.[72] A perusal of Capt. Kabankov's testimony makes it apparent that he was remiss in the discharge of his duties as master of the ship, leaving the entire docking procedure up to the pilot, instead of maintaining watchful vigilance over this risky maneuver: Q A Q A Q A Will you please tell us whether you have the right to intervene in docking of your ship in the harbor? No sir, I have no right to intervene in time of docking, only in case there is imminent danger to the vessel and to the pier. Did you ever intervene during the time that your ship was being docked by Capt. Gavino? No sir, I did not intervene at the time when the pilot was docking my ship. Up to the time it was actually docked at the pier, is that correct'? No sir, I did not intervene up to the very moment when the vessel was docked. xxx Atty. Del Rosario (to the witness) Q A Mr. Witness, what happened, if any, or was there anything unusual that happened during the docking? Yes sir, our ship touched the pier and the pier was damaged. xxx xxx Court (to the witness) Q A Q A When you said touched the pier, are you leading the court to understand that your ship bumped the pier? I believe that my vessel only touched the pier but the impact was very weak. Do you know whether the pier was damaged as a result of that slight or weak impact? Yes sir, after the pier was damaged. xxx Q xxx xxx Being most concerned with the safety of your vessel, in the maneuvering of your vessel, to the port, did you observe anything irregular in the maneuvering by Capt. Gavino at the time he was trying to cause the vessel to be docked at the pier? You mean the action of Capt. Gavino or his condition? A Court: Q A Q A Q A Q A Q A Not the actuation that conform to the safety maneuver of the ship to the harbor? No sir, it was a usual docking. By that statement of yours, you are leading the court to understand that there was nothing irregular in the docking of the ship? Yes sir, during the initial period, of the docking, there was nothing unusual that happened. What about in the last portion of the docking of the ship, was there anything unusual or abnormal that happened? None Your Honor, I believe that Capt. Gavino thought that the anchor could keep or hold the vessel. You want us to understand, Mr. Witness, that the dropping of the anchor of the vessel was not timely? I don't know the depth of this port but I think, if the anchor was dropped earlier and with more shackles, there could not have been an incident. So you could not precisely tell the court that the dropping of the anchor was timely because you are not well aware of the seabed, is that correct? Yes sir, that, is right. xxx Q A Q A Q A Q A Q A Q A Q xxx xxx Alright, Capt. Kavankov, did you come to know later whether the anchor held its ground so much so that the vessel could not travel? It is difficult for me to say definitely. I believe that the anchor did not hold the ship. You mean you don't know whether the anchor blades stuck to the ground to stop the ship from further moving? Yes sir, it is possible. What is possible? I think, the 2 shackles were not enough to hold the vessel. Did you know that the 2 shackles were dropped? Yes sir, I knew that. If you knew that the shackles were not enough to hold the ship, did you not make any protest to the pilot? No sir, after the incident, that was my assumption. Did you come to know later whether that presumption is correct? I still don't know the ground in the harbor or the depths. So from the beginning, you were not competent whether the 2 shackles were also dropped to hold the ship? A No sir, at the beginning, I did not doubt it because I believe Capt. Gavino to be an experienced pilot and he should be more aware as to the depths of the harbor and the ground and I was confident in his actions. xxx xxx xxx Solicitor Abad (to the witness) Q A Q A Q A Q A Q A Q A Now, you were standing with the pilot on the bridge of the vessel before the incident happened, were you not? Yes sir, all the time, I was standing with the pilot. And so whatever the pilot saw, you could also see from that point of view? That is right. Whatever the pilot can read from the panel of the bridge, you also could read, is that correct? What is the meaning of panel'? All indications necessary for men on the bridge to be informed of the movements of the ship? That is right. And whatever sound the captain... Capt. Gavino would hear from the bridge, you could also hear? That is right. Now, you said that when the command to lower the anchor was given, it was obeyed, is that right? This command was executed by the third mate and boatswain. Court (to the witness) Q Mr. Witness, earlier in today's hearing, you said that you did not intervene with the duties of the pilot and that, in your opinion, you can only intervene if the ship is placed in imminent danger, is that correct? That is right, I did say that. In your observation before the incident actually happened, did you observe whether or not the ship, before the actual incident, the ship was placed in imminent danger?. No sir, I did not observe. By that answer, are you leading the court to understand that because you did not intervene and because you believed that it was your duty to intervene when the vessel is placed in imminent danger to which you did not observe any imminent danger thereof, you have not intervened in any manner to the command of the pilot? That is right, sir. xxx Q xxx xxx A Q A Q A Assuming that you disagreed with the pilot regarding the step being taken by the pilot in maneuvering the vessel. whose command will prevail, in case of imminent danger to the vessel? A Q A Q A I did not consider the situation as having an imminent danger. I believed that the vessel will dock alongside the pier. You want us to understand that you did not see an imminent danger to your ship, is that what you mean? Yes sir, up to the very last moment, I believed that there was no imminent danger. Because of that, did you ever intervene in the command of the pilot? Yes sir, I did not intervene because I believed that the command of the pilot to be correct. Solicitor Abad (to the witness) Q A Q A Q A Q A Q A Q A Q A As a captain of M/V Pavlodar, you consider docking maneuvers a serious matter, is it not? Yes sir, that is right. Since it affects not only the safety of the port or pier, but also the safety of the vessel and the cargo, is it not? That is right. So that, I assume that you were watching Capt. Gavino very closely at the time he was making his commands? I was close to him, I was hearing his command and being executed. And that you were also alert for any possible mistakes he might commit in the maneuvering of the vessel? Yes sir, that is right. But at no time during the maneuver did you issue order contrary to the orders Capt. Gavino made? No sir. So that you were in full accord with all of Capt. Gavino's orders? Yes sir. Because, otherwise, you would have issued order that would supersede his own order? In that case, I should take him away from his command or remove the command from him. Court (to the witness) Q You were in full accord with the steps being taken by Capt. Gavino because you relied on his knowledge, on his familiarity of the seabed and shoals and other surroundings or conditions under the sea, is that correct? Yes sir, that is right. xxx Solicitor Abad (to the witness) Q A And so after the anchors were ordered dropped and they did not take hold of the seabed, you were alerted that there was danger already on hand? No sir, there was no imminent danger to the vessel. xxx xxx A Q A Q A Q A Q A Q A Q Do you mean to tell us that even if the anchor was supposed to take hold of the bottom and it did not, there was no danger to the ship? Yes sir, because the anchor dragged on the ground later. And after a few moments when the anchor should have taken hold the seabed but not done (sic), as you expected, you already were alerted that there was danger to the ship, is that correct? Yes sir, I was alerted but there was no danger. And you were alerted that somebody was wrong? Yes sir, I was alerted. And this alert you assumed was the ordinary alertness that you have for normal docking? Yes sir, I mean that it was usual condition of any man in time of docking to be alert. And that is the same alertness when the anchor did not hold onto the ground, is that correct? Yes sir, me and Capt. Gavino (thought) that the anchor will hold the ground. Since, as you said that you agreed all the while with the orders of Capt. Gavino, you also therefore agreed with him in his failure to take necessary precaution against the eventuality that the anchor will not hold as expected? Atty. Del Rosario: May I ask that the question ... Solicitor Abad: Never mind, I will reform the question. xxx Solicitor Abad (to the witness) Q A Q A Is it not a fact that the vessel bumped the pier? That is right, it bumped the pier. For the main reason that the anchor of the vessel did not hold the ground as expected? Yes sir, that is my opinion.”[73] xxx xxx Further, on redirect examination, Capt. Kabankov fortified his apathetic assessment of the situation: Q A Now, after the anchor was dropped, was there any point in time that you felt that the vessel was in imminent danger. No, at that time, the vessel was not in imminent danger, sir."[74] This cavalier appraisal of the event by Capt. Kabankov is disturbingly antipodal to Capt. Gavino's anxious assessment of the situation: Q A When a pilot is on board a vessel, it is the pilot's command which should be followed-at that moment until the vessel is, or goes to port or reaches port? Yes, your Honor, but it does not take away from the Captain his prerogative to countermand the pilot. Q A Q A Q A In what way? In any case, which he thinks the pilot is not maneuvering correctly, the Captain always has the prerogative to countermand the pilot's order. But insofar as competence, efficiency and functional knowledge of the seabed which are vital or decisive in the safety (sic) bringing of a vessel to the port, he is not competent? Yes, your Honor. That is why they hire a pilot in an advisory capacity, but still, the safety of the vessel rest(s) upon the Captain, the Master of the vessel. In this case, there was not a disagreement between you and the Captain of the vessel in the bringing of the vessel to port? No, your Honor. Court: May proceed. Atty. Catris: In fact, the Master of the vessel testified here that he was all along in conformity with the orders you gave to him, and, as matter of fact, as he said, he obeyed all your orders. Can you tell, if in the course of giving such normal orders for the saf(e) docking of the MV Pavlodar, do you remember of any instance that the Master of the vessel did not obey your command for the safety docking of the MV Pavlodar? Atty. del Rosario: Already answered, he already said yes sir. Court: Yes, he has just answered yes sir to the Court that there was no disagreement insofar as the bringing of the vessel safely to the port. Atty. Catris: But in this instance of docking of the MV Pavlodar, do you remember of a time during the course of the docking that the MV Pavlodar was in imminent danger of bumping the pier? A When we were about more than one thousand meters from the pier. I think, the anchor was not holding, so I immediately ordered to push the bow at a fourth quarter, at the back of the vessel in order to swing the bow away from the pier and at the same time, I ordered for a full astern of the engine."[75] These conflicting reactions can only imply, at the very least, unmindful disregard or, worse, neglectful relinquishment of duty by the shipmaster, tantamount to negligence. The findings of the trial court on this aspect is noteworthy: For, while the pilot Gavino may indeed have been charged with the task of docking the vessel in the berthing space, it is undisputed that the master of the vessel had the corresponding duty to countermand any of the orders made by the pilot, aid even maneuver the vessel himself, in case of imminent danger to the vessel and the port. In fact, in his testimony, Capt. Kavankov admitted that all throughout the man(eu)vering procedures he did not notice anything was going wrong, and even observed that the order given to drop the anchor, was done at the proper time. He even ventured the opinion that the accident occurred because the anchor failed to take hold but that this did not alarm him because there was still time to drop a second anchor. Under normal circumstances, the above-mentioned facts would have caused the master of a vessel to take charge of the situation and see to the man(eu)vering of the vessel himself. Instead, Capt. Kavankov chose to rely blindly upon his pilot, who by this time was proven ill-equipped to cope with the situation. xxx xxx xxx It is apparent that Gavino was negligent but Far Eastern's employee Capt. Kavankov was no less responsible for as master of the vessel he stood by the pilot during the man(eu)vering procedures and was privy to every move the latter made, as well as the vessel's response to each of the commands. His choice to rely blindly upon the pilot's skills, to the point that despite being appraised of a notice of alert he continued to relinquish control of the vessel to Gavino, shows indubitably that he was not performing his duties with the diligence required of him and therefore may be charged with negligence along with defendant Gavino.[76] As correctly affirmed by the Court of Appeals We are in full accord with the findings and disquisitions of the Court a quo. In the present recourse, Captain Viktor Kavankov had been a mariner for thirty-two years before the incident. When Gavino was (in) the command of the vessel, Kavankov was beside Gavino, relaying the commands or orders of Gavino to the crewmembers-officers of the vessel concerned. He was thus fully aware of the docking maneuvers and procedure Gavino undertook to dock the vessel. Irrefragably, Kavankov was fully aware of the bulk and size of the vessel and its cargo as well as the weight of the vessel. Kavankov categorically admitted that, when the anchor and two (2) shackles were dropped to the sea floor, the claws of the anchor did not hitch on to any hard object in the seabed. The momentum of the vessel was not arrested. The use of the two (2) tugboats was insufficient. The momentum of the vessel, although a little bit arrested, continued (sic) the vessel going straightforward with its bow towards the port (Exhibit "A-1"). There was thus a need for the vessel to move "full-astern" and to drop the other anchor with another shackle or two '(2), for the vessel to avoid hitting the pier. Kavankov refused to act even as Gavino failed to act. Even as Gavino gave mere "half-astern" order, Kavankov supinely stood by. The vessel was already about twenty (20) meters away from the pier when Gavino gave the 'full-astern" order. Even then, Kavankov did nothing to prevent the vessel from hitting the pier simply because he relied on the competence and plan of Gavino. While the "full-astern" maneuver momentarily arrested the momentum of the vessel, it was, by then, too late. All along, Kavankov stood supinely beside Gavino, doing nothing but relay the commands of Gavino. Inscrutably, then, Kavankov was negligent. xxx xxx xxx The stark incompetence of Kavankov is competent evidence to prove the unseaworthiness of the vessel. It has been held that the incompetence of the navigator, the master of the vessel or its crew makes the vessel unseaworthy (Tug Ocean Prince versus United States of America, 584 F. 2nd, page 1151). Hence, the Appellant FESC is likewise liable for the damage sustained by the Appellee."[77] We find strong and well-reasoned support in time-tested American maritime jurisprudence, on which much of our laws and jurisprudence on the matter are based, for the conclusions of the Court of Appeals adjudging both Capt. Gavino and Capt. Kabankov negligent. As early as 1869, the U.S. Supreme Court declared, through Mr. Justice Swayne, in The Steamship China vs. Walsh,[78] that it is the duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and in all cases of great necessity. The master has the same power to displace the pilot that he has to remove any subordinate officer of the vessel, at his discretion. In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown, emphatically ruled that: Nor are we satisfied with the conduct of the master in leaving the pilot in sole charge of the vessel. While the pilot doubtless supersedes the master for the time being in the command and navigation of the ship, and his orders must be obeyed in all matters connected with her navigation, the master is not wholly absolved from his duties while the pilot is on board, and may advise with him, and even displace him in case he is intoxicated or manifestly incompetent. He is still in command of the vessel, except so far as her navigation is concerned, and bound to see that there is a sufficient watch on deck, and that the men are attentive to their duties. xxx (N)otwithstanding the pilot has charge, it is the duty of the master to prevent accident, and not to abandon the vessel entirely to the pilot; but that there are certain duties he has to discharge (notwithstanding there is a pilot on board) for the benefit of the owners. x x x that in well conducted ships the master does not regard the presence of a duly licensed pilot in compulsory pilot waters as freeing him from every obligation to attend to the safety of the vessel ; but that, while the master sees that his officers and crew duly attend to the pilot's orders, he himself is bound to keep a vigilant eye on the navigation of the vessel, and, when exceptional circumstances exist, not only to urge upon the pilot to use every precaution, but to insist upon, such being taken."[79] (Italics for emphasis.) In Jure vs. United Fruit Co.,[80] which, like the present petitions, involved compulsory pilotage, with a similar scenario where at and prior to the time of injury, the vessel was in the charge of a pilot with the master on the bridge of the vessel beside said pilot, the court therein ruled: The authority of the master of a vessel is not in complete abeyance while a pilot, who is required by law to be accepted, is in discharge of his functions. x x x It is the duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and in all cases of great necessity . The master has the same power to displace the pilot that he has to remove any subordinate officer of the vessel. He may exercise it, or not, according to his discretion. There was evidence to support findings that plaintiff's injury was due to the negligent operation of the Atenas, and that the master of that vessel was negligent in failing to take action to avoid endangering a vessel situated as the City of Canton was and persons or property thereon. A phase of the evidence furnished support for the inferences x x x that he negligently failed to suggest to the pilot the danger which was disclosed, and means of avoiding such danger; and that the master's negligence in failing to give timely admonition to the pilot proximately contributed to the injury complained of. We are of opinion that the evidence mentioned tended to prove conduct of the pilot, known to the master, giving rise to a case of danger or great necessity, calling for the intervention of the master. A master of a vessel is not Without fault in acquiescing in conduct of a pilot which involves apparent and avoidable danger, whether such danger is to the vessel upon which the pilot is, or to another vessel, or persons or property thereon or on shore. (Italics ours.) Still in another case involving a nearly identical setting, the captain of a vessel alongside the compulsory pilot was deemed to be negligent, since, in the words of the court, "he was in a position to exercise his superior authority if he had deemed the speed excessive on the occasion in question. I think it was clearly negligent of him not to have recognized the danger to any craft moored at Gravell Dock and that he should have directed the pilot to reduce his speed as required by the local governmental regulations. His failure amounted to negligence and renders the respondent liable." [81] (Italics supplied.) Though a compulsory pilot might be regarded as an independent contractor, he is at all times subject to the ultimate control of the ship's master.[82] In sum, where a compulsory pilot is in charge of a ship, the master being required to permit him to navigate it, if the master observes that the pilot is incompetent or physically incapable, then it is the duty of the master to refuse to permit the pilot to act. But if no such reasons are present, then the master is justified in relying upon the pilot, but not blindly. Under the circumstances of this case, if a situation arose where the master, exercising that reasonable vigilance which the master of a ship should exercise, observed, or should have observed, that the pilot was so navigating the vessel that she was going, or was likely to go, into danger, and there was in the exercise of reasonable care and vigilance an opportunity for the master to intervene so as to save the ship from danger, the master should have acted accordingly.[83] The master of a vessel must exercise a degree of vigilance commensurate with the circumstances.[84] Inasmuch as the matter of negligence is a question of fact,[85] we defer to the findings of the trial court, especially as this is affirmed by the Court of Appeals.[86] But even beyond that, our own evaluation is that Capt. Kabankov's shared liability is due mainly to the fact that he failed to act when the perilous situation should have spurred him into quick and decisive action as master of the ship. In the face of imminent or actual danger, he did not have to wait for the happenstance to occur before countermanding or overruling the pilot. By his own admission, Capt. Kabankov concurred with Capt. Gavino's decisions, and this is precisely the reason why he decided not to countermand any of the latter's orders. Inasmuch as both lower courts found Capt. Gavino negligent, by expressing full agreement therewith Capt. Kabankov was just as negligent as Capt. Gavino. In general, a pilot is personally liable for damages caused by his own negligence or default to the owners of the vessel, and to third parties for damages sustained in a collision. Such negligence of the pilot in the performance of duty constitutes a maritime tort.[87] At common law, a shipowner is not liable for injuries inflicted exclusively by the negligence of a pilot accepted by a vessel compulsorily.[88] The exemption from liability for such negligence shall apply if the pilot is actually in charge and solely in fault. Since, a pilot is responsible only for his own personal negligence, he cannot be held accountable for damages proximately caused by the default of others,[89] or, if there be anything which concurred with the fault of the pilot in producing the accident, the vessel master and owners are liable. Since the colliding vessel is prima facie responsible, the burden of proof is upon the party claiming benefit of the exemption from liability. It must be shown affirmatively that the pilot was at fault, and that there was no fault on the part of the officers or crew, which might have been conducive to the damage. The fact that the law compelled the master to take the pilot does not exonerate the vessel from liability. The parties who suffer are entitled to have their remedy against the vessel that occasioned the damage, and are not under necessity to look to the pilot from whom redress is not always had for compensation. The owners of the vessel are responsible to the injured party for the acts of the pilot, and they must be left to recover the amount as well as they can against him. It cannot be maintained that the circumstance of having a pilot on board, and acting in conformity to his directions operate as a discharge of responsibility of the owners.[90] Except insofar as their liability is limited or exempted by statute, the vessel or her owner are liable for all damages caused by the negligence or other wrongs of the owners or those in charge of the vessel. Where the pilot of a vessel is not a compulsory one in the sense that the owner or master of the vessel are bound to accept him, but is employed voluntarily, the owners of the vessel are, all the more, liable for his negligent act.[91] In the United States, the owners of a vessel are not personally liable for the negligent acts of a compulsory pilot, but by admiralty law, the fault or negligence of a compulsory pilot is imputable to the vessel and it may be held liable therefor in rem. Where, however, by the provisions of the statute the pilot is compulsory only in the sense that his fee must be paid, and is not in compulsory charge of the vessel, there is no exemption from liability. Even though the pilot is compulsory, if his negligence was not the sole cause of the injury, but the negligence of the master or crew contributed thereto, the owners are liable.[92] But the liability of the ship in rem does not release the pilot from the consequences of his own negligence.[93] The rationale for this rule is that the master is not entirely absolved of responsibility with respect to navigation when a compulsory pilot is in charge.[94] By way of validation and in light of the aforecited guidepost rulings in American maritime cases, we declare that our rulings during the early years of this century in City of Manila vs. Gambe, [95] China Navigation Co., Ltd. vs. Vidal,[96] and Yap Tico & Co. vs. Anderson, et al.[97] have withstood the proverbial test of time and remain good and relevant case law to this day. City of Manila stands for the doctrine that the pilot who was in command and complete control of a vessel, and not the owners, must be held responsible for an accident which was solely the result of the mistake of the pilot in not giving proper orders, and which did not result from the failure of the owners to equip the vessel with the most modern and improved machinery. In China Navigation Co., the pilot deviated from the ordinary and safe course, without heeding the warnings of the ship captain. It was this careless deviation that caused the vessel to collide with a pinnacle rock which, though uncharted, was known to pilots and local navigators. Obviously, the captain was blameless. It was the negligence of the pilot alone which was the proximate cause of the collision. The Court could not but then rule that The pilot in the case at bar having deviated from the usual and ordinary course followed by navigators in passing through the strait in question, without a substantial reason, was guilty of negligence, and that negligence having been the proximate cause of the damages, he is liable for such damages as usually and naturally flow therefrom. x x x. x x x (T)he defendant should have known of the existence and location of the rock upon which the vessel struck while under his control and management. x x x. Consistent with the pronouncements in these two earlier cases, but on a slightly different tack, the Court in Yap Tico & Co. exonerated the pilot from liability for the accident where the order's of the pilot in the handling of the ship were disregarded by the officers and crew of the ship. According to the Court, a pilot is "x x x responsible for a full knowledge of the channel and the navigation only so far as he can accomplish it through the officers and crew of the ship, and I don't see that he can be held responsible for damage when the evidence shows, as it does in this case, that the officers and crew of the ship failed to obey his orders." Nonetheless, it is possible for a compulsory pilot and the master of the vessel to be concurrently negligent and thus share the blame for the resulting damage as Joint tortfeasors,[98] but only under the circumstances obtaining in and demonstrated by the instant petitions. It may be said, as a general rule, that negligence in order to render a person liable need not be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes other than plaintiff's, is the proximate cause of the injury. Accordingly, where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that the negligence of the person charged with injury is an efficient cause without which the injury would not have resulted to as great an extent, and that such cause is not attributable to the person injured. It is no defense to one of the concurrent tortfeasors that the injury would not have resulted from his negligence alone, without the negligence or wrongful acts of the other concurrent tortfeasor.[99] Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes and recovery may be had against any or all of the responsible persons although under the circumstances of the case, it may appear that one of them was more culpable, and that the duty owed by them to the injured person was not the same. No actor's negligence ceases to be a proximate cause merely because it does not exceed the negligence of other actors. Each wrongdoer is responsible for the entire result and is liable as though his acts were the sole cause of the injury.[100] There is no contribution between joint tortfeasors whose liability is solidary since both of them are liable for the total damage. Where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently, are in combination the direct and proximate cause of a single injury to a third person, it is impossible to determine in what proportion each contributed to the injury and either of them is responsible for the whole injury. Where their concurring negligence resulted in injury or damage to a third party, they become joint tortfeasors and are solidarity liable for the resulting damage under Article 2194[101] of the Civil Code.[102] As for the amount of damages awarded by the trial court, we find the same to be reasonable. The testimony of Mr. Pascual Barral, witness for PPA, on cross and redirect examination, appears to be grounded on practical considerations: Q A Q A Q A Q A So that the cost of the two additional piles as well as the (two) square meters is already included in this -P1,300,999.77. Yes sir, everything. It is (the) final cost already. For the eight piles. Including the reduced areas and other reductions. (A)nd the two square meters. Yes sir. In other words, this P1,300,999.77 does not represent only for the six piles that was damaged as well as the corresponding two piles. The area was corresponding, was increased by almost two in the actual payment. That was why the contract was decreased, the real amount was P1,124,627.40 and the final one is P1300,999.77. Yes, but that P1,300,999.77 included the additional two new posts. It was increased. Why was it increased? The original was 48 and the actual was 46. Now, the damage was somewhere in 1980. It took place in 1980 and you started the repair and reconstruction in 1982, that took almost two years? Yes sir. May it not happen that by natural factors, the existing damage in 1980 was aggravated for the 2 year period that the damage portion was not repaired? I don't think so because that area was at once marked and no vehicles can park, it was closed. Even if or even natural elements cannot affect the damage? Cannot, sir. xxx Q xxx xxx Q A Q A Q A Q A Q A You said in the cross-examination that there were six piles damaged by the accident, but that in the reconstruction of the pier, PPA drove and constructed 8 piles. Will you explain to us why there was change in the number of piles from the original number? In piers where the piles are withdrawn or pulled out, you cannot re-drive or drive piles at the same point. You have to redesign the driving of the piles. We cannot drive the piles at the same point where the piles are broken or damaged or pulled out. We have to redesign, and you will note that in the reconstruction, we redesigned such that it necessitated 8 piles. Why not, why could you not drive the same number of piles and on the same spot? The original location was already disturbed. We cannot get required bearing capacity. area is already disturbed. The A Q A Q A Nonetheless, if you drove the original number of piles, six, on different places, would not that have sustained the same load? It will not suffice, sir."[103] We quote the findings of the lower court with approval: With regards to the amount of damages that is to be awarded to plaintiff, the Court finds that the amount of P1,053,300.00 is justified. Firstly, the doctrine of res ipsa loquitur best expounded upon in the landmark case of Republic vs. Luzon Stevedoring Corp. (21 SCRA 279) establishes the presumption that in the ordinary course of events the ramming of the dock would not have occurred if proper care was used. Secondly, the various estimates and plans justify the cost of the port construction price. The new structure constructed not only replaced the damaged one but was built of stronger materials to forestall the possibility of any similar accidents in the future. The Court inevitably finds that the plaintiff is entitled to an award of P1,053,300.00 which represents actual damages caused by the damage to Berth 4 of the Manila International Port. Co-defendants Far Eastern Shipping, Capt. Senen Gavino and Manila Pilots Association are solidarity liable to pay this amount to plaintiff.[104] The Solicitor General rightly commented that the adjudicated amount of damages represents the proportional cost of repair and rehabilitation of the damaged section of the pier.[105] Except insofar as their liability is limited or exempted by statute, the vessel or her owners are liable for all damages caused by the negligence or other wrongs of the owners or those in charge of the vessel. As a general rule, the owners or those in possession and control of a vessel and the vessel are liable for all natural and proximate damages caused to persons or property by reason of her negligent management or navigation.[106] FESC's imputation of PPA's failure to provide a safe and reliable berthing place is obtuse, not only because it appears to be a mere afterthought, being tardily raised only in this petition, but also because there is no allegation or evidence on record about Berth No. 4 being unsafe and unreliable, although perhaps it is a modest pier by international standards. There was, therefore, no error on the part of the Court of Appeals in dismissing FESC's counterclaim. II. G.R. No. 130150 This consolidated case treats on whether the Court of Appeals erred in holding MPA jointly and solidarity liable with its member pilot, Capt. Gavino, in the absence of employer-employee relationship and in applying Customs Administrative Order No. 15-65, as basis for the adjudged solidary liability of MPA and Capt. Gavino. The pertinent provisions in Chapter I of Customs Administrative Order No. 15-65 are: "PAR. XXVII.-- In all pilotage districts where pilotage is compulsory, there shall be created and maintained by the pilots or pilots' association, in the manner hereinafter prescribed, a reserve fund equal to P1,000.00 for each pilot thereof for the purpose of paying claims for damages to vessels or property caused through acts or omissions of its members while rendered in compulsory pilotage service. In Manila, the reserve fund shall be P2,000.00 for each pilot. PAR. XXVIII.-- A pilots' association shall not be liable under these regulations for damage to any vessel, or other property, resulting from acts of a member of an association in the actual performance of his duty for a greater amount than seventy-five per centum (75%) of its prescribed reserve fund; it being understood that if the association is held liable for an amount greater than the amount above-stated, the excess shall be paid by the personal funds of the member concerned. PAR. XXXI.-- If a payment is made from the reserve fund of an association on account of damages caused by a member thereof, and he shall have been found at fault, such member shall reimburse the association in the amount so paid as soon as practicable; and for this purpose, not less than twenty-five per centum of his dividends shall be retained each month until the full amount has been returned to the reserve fund. PAR. XXXIV. - Nothing in these regulations shall relieve any pilots' association or members thereof, individually or collectively, from civil responsibility for damages to life or property resulting from the acts of members in the performance of their duties. Correlatively, the relevant provisions of PPA Administrative Order No. 03-85, which timely amended this applicable maritime regulation, state: Article IV SEC. 17. Pilots' Association -- The Pilots in a Pilotage District shall organize themselves into a Pilots' Association or firm, the members of which shall promulgate their own By-Laws not in conflict with the rules and regulations promulgated by the Authority. These By-Laws shall be submitted not later than one (1) month after the organization of the Pilots' Association for approval by the General Manager of the Authority. Subsequent amendments thereto shall likewise be submitted for approval. SEC. 25. Indemnity Insurance and Reserve Fund-a) Each Pilots' Association shall collectively insure its membership at the rate of P50,000.00 each member to cover in whole or in part any liability arising from any accident resulting in damage to vessel(s), port facilities and other properties and/or injury to persons or death which any member may have caused in the course of his performance of pilotage duties. x x x. The Pilotage Association shall likewise set up and maintain a reserve fund which shall answer for any part of the liability referred to in the immediately preceding paragraph which is left unsatisfied by the insurance proceeds, in the following manner: 1) Each pilot in the Association shall contribute from his own account an amount of P4,000.00 (P6,000.00 in the Manila Pilotage District) to the reserve fund. This fund shall not be considered part of the capital of the Association nor charged as an expense thereof. Seventy-five percent (75%) of the reserve fund shall be set aside for use, in the payment of damages referred to above incurred in the actual performance of pilots' duties and the excess shall be paid from the personal funds of the member concerned. xxx xxx b) 2) xxx 5) If payment is made from the reserve fund of an Association on account of damage caused by a member thereof who is found at fault, he shall reimburse the Association in the amount so paid as soon as practicable; and for this purpose, not less than twenty-five percentum (25%) of his dividend shall be retained each month until the full amount has been returned to the reserve fund. Thereafter, the pilot involved shall be entitled to his full dividend. When the reimbursement has been completed as prescribed in the preceding paragraph, the ten percentum (10%) and the interest withheld from the shares of the other pilots in accordance with paragraph (4) hereof shall be returned to them. Liability of Pilots' Association -- Nothing in these regulations shall relieve any Pilots' Association or members thereof, individually or collectively, from any civil, administrative and/or criminal responsibility for damages to life or property resulting from the individual acts of its members as well as those of the Association's employees and crew in the performance of their duties. 6) c) The Court of Appeals, while affirming the trial court's finding of solidary liability on the part of FESC, MPA and Capt. Gavino, correctly based MPA's liability not on the concept of employer-employee relationship between Capt. Gavino and itself, but on the provisions of Customs Administrative Order No. 15-65: The Appellant MPA avers that, contrary to the findings and disquisitions of the Court a quo, the Appellant Gavino was not and has never been an employee of the MPA but was only a member thereof. The Court a quo, it is noteworthy,, did not state the factual basis on which it anchored its finding that Gavino was the employee of MPA. We are in accord with MPA's pose. Case law teaches Us that, for an employeremployee relationship to exist the confluence of the following elements must be established: (1) selection and engagement of employees; (2) the payment of wages; (3) the power of dismissal; (4) the employer's power to control the employees with respect to the means and method by which the work is to be performed (Ruga versus NLRC, 181SCRA 266). xxx xxx xxx The liability of MPA for damages is not anchored on Article 2180 of the New Civil Code as erroneously found and declared by the Court a quo but under the provisions of Customs Administrative Order No. 1565, supra, in tandem with the by-laws of the MPA."[107] There being no employer-employee relationship, clearly Article 2180[108] of the Civil Code is inapplicable since there is no vicarious liability of an employer to speak of. It is so stated in American law, as follows: The well-established rule is that pilot associations are immune to vicarious liability for the tort of their members. They are not the employer of their members and exercise no control over them once they take the helm of the vessel. They are also not partnerships because the members do not function as agents for the association or for each other. Pilots' associations are also not liable for negligently assuring, the competence of their members because as professional associations they made no guarantee of the professional conduct of their members to the general public.[109] Where under local statutes and regulations, pilot associations lack the necessary legal incidents of responsibility, they have been held not liable for damages caused by the default of a member pilot.[110] Whether or not the members of a pilots' association are in legal effect a copartnership depends wholly on the powers and duties of the members in relation to one another under the provisions of the governing statutes and regulations. The relation of a pilot to his association is not that of a servant to the master, but of an associate assisting and participating in a common purpose. Ultimately, the rights and liabilities between a pilots' association and an individual member depend largely upon the constitution, articles or by-laws of the association, subject to appropriate government regulations.[111] No reliance can be placed by MPA on the cited American rulings as to immunity from liability of a pilots' association in light of existing positive regulation under Philippine law. The Court of Appeals properly applied the clear and unequivocal provisions of Customs Administrative Order No. 15-65. In doing so, it was just being consistent with its finding of the non-existence of employer-employee relationship between MPA and Capt. Gavino precludes the application of Article 2180 of the Civil Code. True, Customs Administrative Order No. 15-65 does not categorically characterize or label MPA's liability as solidary in nature. Nevertheless, a careful reading and proper analysis of the correlated provisions lead to the conclusion that MPA is solidarity liable for the negligence of its member pilots, without prejudice to subsequent reimbursement from the pilot at fault. Article 1207 of the Civil Code provides that there is solidary liability only when the obligation expressly so states, or when the law or the nature of the obligation requires solidarity. Plainly, Customs Administrative Order No. 15-65, which as an implementing rule has the force and effect of law, can validly provide for solidary liability. We note the Solicitor General's comment hereon, to wit: x x x Customs Administrative Order No. 15-65 may be a mere rule and regulation issued by an administrative agency pursuant to a delegated authority to fix "the details" in the execution or enforcement of a policy set out in the law itself. Nonetheless, said administrative order, which adds to the procedural or enforcing provisions of substantive law, is legally binding and receives the same statutory force upon going into effect. In that sense, it has equal, not lower, statutory force and effect as a regular statute passed by the legislature."[112] MPA's prayer for modification of the appellate court's decision under review by exculpating petitioner MPA "from liability beyond seventy-five percent (75%) of Reserve Fund" is unnecessary because the liability of MPA under Par. XXVIII of Customs Administrative Order No. 15-65 is in fact limited to seventy-five percent (75%) of its prescribed reserve fund, any amount of liability beyond that being for the personal account of the erring pilot and subject to reimbursement in case of a finding of fault by the member concerned. This is clarified by the Solicitor General: Moreover, contrary to petitioners pretensions, the provisions of Customs Administrative Order No. 15-65 do not limit the liability of petitioner as a pilots' association to an absurdly small amount of seventy-five per centum (75%) of the member pilots' contribution of P2,000.00 to the reserve fund. The law speaks of the entire reserve fund required to be maintained by the pilots' association to answer (for) whatever liability arising from the tortious act of its members. And even if the association is held liable for an amount greater than the reserve fund, the association may not resist the liability by claiming to be liable only up to seventy-five per centum (75%) of the reserve fund because in such instance it has the right to be reimbursed by the offending member pilot for the excess."[113] WHEREFORE, in view of all of the foregoing, the consolidated petitions for review are DENIED and the assailed decision of the Court of Appeals is AFFIRMED in toto. Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically its associate, Atty. Herbert A. Tria, is REPRIMANDED and WARNED that a repetition of the same or similar acts of heedless disregard of its undertakings under the Rules shall be dealt with more severely. The original members of the legal team of the Office of the Solicitor General assigned to this case, namely, Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon, are ADMONISHED and WARNED that a repetition of the same or similar acts of unduly delaying proceedings due to delayed filing of required pleadings shall also be dealt with more stringently. The Solicitor General is DIRECTED to look into the circumstances of this case and to adopt provident measures to avoid a repetition of this incident and which would ensure prompt compliance with orders of this Court regarding the timely filing of requisite pleadings, in the interest of just, speedy and orderly administration of justice. Let copies of this decision be spread upon the personal records of the lawyers named herein in the Office of the Bar Confidant. SO ORDERED. Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Martinez, Quisumbing and Purisima, JJ., concur. Narvasa, C.J., and Mendoza, J., on leave. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-15674 October 17, 1921 CONSOLACION GABETO, in her own right and as guardian ad litem of her three children, plaintiff-appellee, vs. AGATON ARANETA, defendant-appellant. Jose E. Locsin for appellant. Block, Johnston and Greenbaum for appellee. STREET, J.: This action was instituted in the Court of First Instance of Iloilo by Consolacion Gabeto, in her own right as widow of Proceso Gayetano, and as guardian ad litem of the three children, Conchita Gayetano, Rosita Gayetano, and Fermin Gayetano, for the purpose of recovering damages incurred by the plaintiff as a result of the death of the said Proceso Gayetano, supposedly cause by the wrongful act of the defendant Agaton Araneta. Upon hearing the evidence, his Honor, Judge L. M. Southworth, awarded damages to the plaintiff in the amount of P3,000, from which judgment the defendant appealed. It appears in evidence that on August 4, 1918. Basilio Ilano and Proceso Gayetano took a carromata near Plaza Gay, in the City of Iloilo, with a view to going to a cockpit on Calle Ledesma in the same City. When the driver of the carromata had turned his horse and started in the direction indicated, the defendant, Agaton Araneta, stepped out into the street, and laying his hands on the reins, stopped the horse, at the same time protesting to the driver that he himself had called this carromata first. The driver, one Julio Pagnaya, replied to the effect that he had not heard or seen the call of Araneta, and that he had taken up the two passengers then in the carromata as the first who had offered employment. At or about the same time Pagnaya pulled on the reins of the bridle to free the horse from the control of Agaton Araneta, in order that the vehicle might pass on. Owing, however, to the looseness of the bridle on the horse's head or to the rottenness of the material of which it was made, the bit came out of the horse's mouth; and it became necessary for the driver to get out, which he did, in order to find the bridle. The horse was then pulled over to near the curb, by one or the other — it makes no difference which — and Pagnaya tried to fix the bridle. While he was thus engaged, the horse, being free from the control of the bit, became disturbed and moved forward, in doing which he pulled one of the wheels of the carromata up on the sidewalk and pushed Julio Pagnaya over. After going a few years further the side of the carromata struck a police telephone box which was fixed to a post on the sidewalk, upon which the box came down with a crash and frightened the horse to such an extent that he set out at full speed up the street. Meanwhile one of the passengers, to wit. Basilio Ilano, had alighted while the carromata was as yet alongside the sidewalk; but the other, Proceso Gayetano, had unfortunately retained his seat, and after the runaway horse had proceeded up the street to a point in front of the Mission Hospital, the said Gayetano jumped or fell from the rig, and in so doing received injuries from which he soon died. As to the facts above stated the evidence cannot be said to be materially in conflict; but there is decided conflict upon the point of the exact relation of the defendant Agaton Araneta, to the runaway. The evidence for the plaintiff on this point consists chiefly of the testimony of Julio Pagnaya and of Basilio Ilano. They both say that while yet in the middle of the street, the defendant jerked the bridle, which caused the bit to come out of the horse's mouth, and Julio says that at that juncture the throat latch of the bridle was broken. Be this as it may, we are of the opinion that the mere fact that the defendant interfered with the carromata by stopping the horse in the manner stated would not make him liable for the death of Proceso Gayetano; because it is admitted by Julio Pagnaya that he afterwards got out of the carromata and went to the horse's head to fix the bridle. The evidence is furthermore convincing to the effect that, after Julio Pagnaya alighted, the horse was conducted to the curb and that an appreciable interval of time elapsed — same witnesses say several minutes — before the horse started on his career up the street. 1awph!l.net It is therefore evident that the stopping of the rig by Agaton Araneta in the middle of the street was too remote from the accident that presently ensued to be considered the legal or proximate cause thereof. Moreover, by getting out and taking his post at the head of the horse, the driver was the person primarily responsible for the control of the animal, and the defendant cannot be charged with liability for the accident resulting from the action of the horse thereafter. Julio Pagnaya testifies to one fact which, if it were fully accredited, would possibly put a different complexion on the case; for he says that when the horse was pulled over to the curb, the defendant, by way of emphasizing his verbal denunciation of Pagnaya, gesticulated with one of his arms and incidentally brought his hand down on the horse's nose. This, according to Pagnaya, is what made the horse run away. There is no other witness who testifies to this; and it is noteworthy that Basilio Ilano does not mention it. A decided preponderance of the evidence in our opinion is against it. The evidence indicates that the bridle was old, and the leather of which it was made was probably so weak as to be easily broken. Julio Pagnaya had a natural interest in refuting this fact, as well as in exculpating himself in other respects; and we are of the opinion that the several witnesses who testified for the defendant gave a more credible account of the affair than the witnesses for the plaintiff. According to the witnesses for the defendant, it was Julio who jerked the rein, thereby causing the bit it come out of the horse's mouth; and they say that Julio, after alighting, led the horse over to the curb, and proceeded to fix the bridle; and that in so doing the bridle was slipped entirely off, when the horse, feeling himself free from control, started to go away as previously stated. Upon the whole we are constrained to hold that the defendant is not legally responsible for the death of Proceso Gayetano; and though reluctant to interfere with the findings of fact of a trial court when there is a conflict of testimony, the evidence in this case so clearly preponderates in favor of the defendant, that we have no recourse but to reverse the judgment. The judgment will therefore be reversed, and the defendant will be absolved from the complaint; and it is so ordered, without express finding as to costs of either instance. So ordered. Johnson, Araullo, Avanceña and Villamor, JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-65295 March 10, 1987 PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners, vs. THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents. FELICIANO, J: In the early morning of 15 November 1975 — at about 1:30 a.m. — private respondent Leonardo Dionisio was on his way home — he lived in 1214-B Zamora Street, Bangkal, Makati — from a cocktails-anddinner meeting with his boss, the general manager of a marketing corporation. During the cocktails phase of the evening, Dionisio had taken "a shot or two" of liquor. Dionisio was driving his Volkswagen car and had just crossed the intersection of General Lacuna and General Santos Streets at Bangkal, Makati, not far from his home, and was proceeding down General Lacuna Street, when his car headlights (in his allegation) suddenly failed. He switched his headlights on "bright" and thereupon he saw a Ford dump truck looming some 2-1/2 meters away from his car. The dump truck, owned by and registered in the name of petitioner Phoenix Construction Inc. ("Phoenix"), was parked on the right hand side of General Lacuna Street (i.e., on the right hand side of a person facing in the same direction toward which Dionisio's car was proceeding), facing the oncoming traffic. The dump truck was parked askew (not parallel to the street curb) in such a manner as to stick out onto the street, partly blocking the way of oncoming traffic. There were no lights nor any so-called "early warning" reflector devices set anywhere near the dump truck, front or rear. The dump truck had earlier that evening been driven home by petitioner Armando U. Carbonel, its regular driver, with the permission of his employer Phoenix, in view of work scheduled to be carried out early the following morning, Dionisio claimed that he tried to avoid a collision by swerving his car to the left but it was too late and his car smashed into the dump truck. As a result of the collision, Dionisio suffered some physical injuries including some permanent facial scars, a "nervous breakdown" and loss of two gold bridge dentures. Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically claiming that the legal and proximate cause of his injuries was the negligent manner in which Carbonel had parked the dump truck entrusted to him by his employer Phoenix. Phoenix and Carbonel, on the other hand, countered that the proximate cause of Dionisio's injuries was his own recklessness in driving fast at the time of the accident, while under the influence of liquor, without his headlights on and without a curfew pass. Phoenix also sought to establish that it had exercised due rare in the selection and supervision of the dump truck driver. The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and ordered the latter: (1) To pay plaintiff jointly and severally the sum of P 15,000.00 for hospital bills and the replacement of the lost dentures of plaintiff; (2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as loss of expected income for plaintiff brought about the accident in controversy and which is the result of the negligence of the defendants; (3) To pay the plaintiff jointly and severally the sum of P 10,000. as moral damages for the unexpected and sudden withdrawal of plaintiff from his lifetime career as a marketing man; mental anguish, wounded feeling, serious anxiety, social humiliation, besmirched reputation, feeling of economic insecurity, and the untold sorrows and frustration in life experienced by plaintiff and his family since the accident in controversy up to the present time; (4) To pay plaintiff jointly and severally the sum of P 10,000.00 as damages for the wanton disregard of defendants to settle amicably this case with the plaintiff before the filing of this case in court for a smaller amount. (5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due as and for attorney's fees; and (6) The cost of suit. (Emphasis supplied) Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R. No. 65476 affirmed the decision of the trial court but modified the award of damages to the following extent: 1. The award of P15,000.00 as compensatory damages was reduced to P6,460.71, the latter being the only amount that the appellate court found the plaintiff to have proved as actually sustained by him; 2. The award of P150,000.00 as loss of expected income was reduced to P100,000.00, basically because Dionisio had voluntarily resigned his job such that, in the opinion of the appellate court, his loss of income "was not solely attributable to the accident in question;" and 3. The award of P100,000.00 as moral damages was held by the appellate court as excessive and unconscionable and hence reduced to P50,000.00. The award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and costs remained untouched. This decision of the Intermediate Appellate Court is now before us on a petition for review. Both the trial court and the appellate court had made fairly explicit findings of fact relating to the manner in which the dump truck was parked along General Lacuna Street on the basis of which both courts drew the inference that there was negligence on the part of Carbonel, the dump truck driver, and that this negligence was the proximate cause of the accident and Dionisio's injuries. We note, however, that both courts failed to pass upon the defense raised by Carbonel and Phoenix that the true legal and proximate cause of the accident was not the way in which the dump truck had been parked but rather the reckless way in which Dionisio had driven his car that night when he smashed into the dump truck. The Intermediate Appellate Court in its questioned decision casually conceded that Dionisio was "in some way, negligent" but apparently failed to see the relevance of Dionisio's negligence and made no further mention of it. We have examined the record both before the trial court and the Intermediate Appellate Court and we find that both parties had placed into the record sufficient evidence on the basis of which the trial court and the appellate court could have and should have made findings of fact relating to the alleged reckless manner in which Dionisio drove his car that night. The petitioners Phoenix and Carbonel contend that if there was negligence in the manner in which the dump truck was parked, that negligence was merely a "passive and static condition" and that private respondent Dionisio's recklessness constituted an intervening, efficient cause determinative of the accident and the injuries he sustained. The need to administer substantial justice as between the parties in this case, without having to remand it back to the trial court after eleven years, compels us to address directly the contention put forward by the petitioners and to examine for ourselves the record pertaining to Dionisio's alleged negligence which must bear upon the liability, or extent of liability, of Phoenix and Carbonel. There are four factual issues that need to be looked into: (a) whether or not private respondent Dionisio had a curfew pass valid and effective for that eventful night; (b) whether Dionisio was driving fast or speeding just before the collision with the dump truck; (c) whether Dionisio had purposely turned off his car's headlights before contact with the dump truck or whether those headlights accidentally malfunctioned moments before the collision; and (d) whether Dionisio was intoxicated at the time of the accident. As to the first issue relating to the curfew pass, it is clear that no curfew pass was found on the person of Dionisio immediately after the accident nor was any found in his car. Phoenix's evidence here consisted of the testimony of Patrolman Cuyno who had taken Dionisio, unconscious, to the Makati Medical Center for emergency treatment immediately after the accident. At the Makati Medical Center, a nurse took off Dionisio's clothes and examined them along with the contents of pockets together with Patrolman Cuyno. 1 Private respondent Dionisio was not able to produce any curfew pass during the trial. Instead, he offered the explanation that his family may have misplaced his curfew pass. He also offered a certification (dated two years after the accident) issued by one Major Benjamin N. Libarnes of the Zone Integrated Police Intelligence Unit of Camp Olivas, San Fernando, Pampanga, which was said to have authority to issue curfew passes for Pampanga and Metro Manila. This certification was to the effect that private respondent Dionisio had a valid curfew pass. This certification did not, however, specify any pass serial number or date or period of effectivity of the supposed curfew pass. We find that private respondent Dionisio was unable to prove possession of a valid curfew pass during the night of the accident and that the preponderance of evidence shows that he did not have such a pass during that night. The relevance of possession or non-possession of a curfew pass that night lies in the light it tends to shed on the other related issues: whether Dionisio was speeding home and whether he had indeed purposely put out his headlights before the accident, in order to avoid detection and possibly arrest by the police in the nearby police station for travelling after the onset of curfew without a valid curfew pass. On the second issue — whether or not Dionisio was speeding home that night — both the trial court and the appellate court were completely silent. The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at the scene of the accident almost immediately after it occurred, the police station where he was based being barely 200 meters away. Patrolman Cuyno testified that people who had gathered at the scene of the accident told him that Dionisio's car was "moving fast" and did not have its headlights on. 2 Dionisio, on the other hand, claimed that he was travelling at a moderate speed at 30 kilometers per hour and had just crossed the intersection of General Santos and General Lacuna Streets and had started to accelerate when his headlights failed just before the collision took place. 3 Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and did not fag within any of the recognized exceptions to the hearsay rule since the facts he testified to were not acquired by him through official information and had not been given by the informants pursuant to any duty to do so. Private respondent's objection fails to take account of the fact that the testimony of Patrolman Cuyno is admissible not under the official records exception to the hearsay rule 4 but rather as part of the res gestae. 5 Testimonial evidence under this exception to the hearsay rule consists of excited utterances made on the occasion of an occurrence or event sufficiently startling in nature so as to render inoperative the normal reflective thought processes of the observer and hence made as a spontaneous reaction to the occurrence or event, and not the result of reflective thought. 6 We think that an automobile speeding down a street and suddenly smashing into a stationary object in the dead of night is a sufficiently startling event as to evoke spontaneous, rather than reflective, reactions from observers who happened to be around at that time. The testimony of Patrolman Cuyno was therefore admissible as part of the res gestae and should have been considered by the trial court. Clearly, substantial weight should have been ascribed to such testimony, even though it did not, as it could not, have purported to describe quantitatively the precise velocity at winch Dionisio was travelling just before impact with the Phoenix dump truck. A third related issue is whether Dionisio purposely turned off his headlights, or whether his headlights accidentally malfunctioned, just moments before the accident. The Intermediate Appellate Court expressly found that the headlights of Dionisio's car went off as he crossed the intersection but was non-committal as to why they did so. It is the petitioners' contention that Dionisio purposely shut off his headlights even before he reached the intersection so as not to be detected by the police in the police precinct which he (being a resident in the area) knew was not far away from the intersection. We believe that the petitioners' theory is a more credible explanation than that offered by private respondent Dionisio — i.e., that he had his headlights on but that, at the crucial moment, these had in some mysterious if convenient way malfunctioned and gone off, although he succeeded in switching his lights on again at "bright" split seconds before contact with the dump truck. A fourth and final issue relates to whether Dionisio was intoxicated at the time of the accident. The evidence here consisted of the testimony of Patrolman Cuyno to the effect that private respondent Dionisio smelled of liquor at the time he was taken from his smashed car and brought to the Makati Medical Center in an unconscious condition. 7 This testimony has to be taken in conjunction with the admission of Dionisio that he had taken "a shot or two" of liquor before dinner with his boss that night. We do not believe that this evidence is sufficient to show that Dionisio was so heavily under the influence of liquor as to constitute his driving a motor vehicle per se an act of reckless imprudence. 8 There simply is not enough evidence to show how much liquor he had in fact taken and the effects of that upon his physical faculties or upon his judgment or mental alertness. We are also aware that "one shot or two" of hard liquor may affect different people differently. The conclusion we draw from the factual circumstances outlined above is that private respondent Dionisio was negligent the night of the accident. He was hurrying home that night and driving faster than he should have been. Worse, he extinguished his headlights at or near the intersection of General Lacuna and General Santos Streets and thus did not see the dump truck that was parked askew and sticking out onto the road lane. Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that the legal and proximate cause of the accident and of Dionisio's injuries was the wrongful — or negligent manner in which the dump truck was parked in other words, the negligence of petitioner Carbonel. That there was a reasonable relationship between petitioner Carbonel's negligence on the one hand and the accident and respondent's injuries on the other hand, is quite clear. Put in a slightly different manner, the collision of Dionisio's car with the dump truck was a natural and foreseeable consequence of the truck driver's negligence. The petitioners, however, urge that the truck driver's negligence was merely a "passive and static condition" and that private respondent Dionisio's negligence was an "efficient intervening cause and that consequently Dionisio's negligence must be regarded as the legal and proximate cause of the accident rather than the earlier negligence of Carbonel. We note that the petitioners' arguments are drawn from a reading of some of the older cases in various jurisdictions in the United States but we are unable to persuade ourselves that these arguments have any validity for our jurisdiction. We note, firstly, that even in the United States, the distinctions between "cause" and "condition" which the 'petitioners would have us adopt have already been "almost entirely discredited." Professors and Keeton make this quite clear: Cause and condition. Many courts have sought to distinguish between the active "cause" of the harm and the existing "conditions" upon which that cause operated. If the defendant has created only a passive static condition which made the damage possible, the defendant is said not to be liable. But so far as the fact of causation is concerned, in the sense of necessary antecedents which have played an important part in producing the result it is quite impossible to distinguish between active forces and passive situations, particularly since, as is invariably the case, the latter are the result of other active forces which have gone before. The defendant who spills gasoline about the premises creates a "condition," but the act may be culpable because of the danger of fire. When a spark ignites the gasoline, the condition has done quite as much to bring about the fire as the spark; and since that is the very risk which the defendant has created, the defendant will not escape responsibility. Even the lapse of a considerable time during which the "condition" remains static will not necessarily affect liability; one who digs a trench in the highway may still be liable to another who fans into it a month afterward. "Cause" and "condition" still find occasional mention in the decisions; but the distinction is now almost entirely discredited. So far as it has any validity at all, it must refer to the type of case where the forces set in operation by the defendant have come to rest in a position of apparent safety, and some new force intervenes. But even in such cases, it is not the distinction between "cause" and "condition" which is important but the nature of the risk and the character of the intervening cause. 9 We believe, secondly, that the truck driver's negligence far from being a "passive and static condition" was rather an indispensable and efficient cause. The collision between the dump truck and the private respondent's car would in an probability not have occurred had the dump truck not been parked askew without any warning lights or reflector devices. The improper parking of the dump truck created an unreasonable risk of injury for anyone driving down General Lacuna Street and for having so created this risk, the truck driver must be held responsible. In our view, Dionisio's negligence, although later in point of time than the truck driver's negligence and therefore closer to the accident, was not an efficient intervening or independent cause. What the Petitioners describe as an "intervening cause" was no more than a foreseeable consequent manner which the truck driver had parked the dump truck. In other words, the petitioner truck driver owed a duty to private respondent Dionisio and others similarly situated not to impose upon them the very risk the truck driver had created. Dionisio's negligence was not of an independent and overpowering nature as to cut, as it were, the chain of causation in fact between the improper parking of the dump truck and the accident, nor to sever the juris vinculum of liability. It is helpful to quote once more from Professor and Keeton: Foreseeable Intervening Causes. If the intervening cause is one which in ordinary human experience is reasonably to be anticipated or one which the defendant has reason to anticipate under the particular circumstances, the defendant may be negligence among other reasons, because of failure to guard against it; or the defendant may be negligent only for that reason. Thus one who sets a fire may be required to foresee that an ordinary, usual and customary wind arising later wig spread it beyond the defendant's own property, and therefore to take precautions to prevent that event. The person who leaves the combustible or explosive material exposed in a public place may foresee the risk of fire from some independent source. ... In all of these cases there is an intervening cause combining with the defendant's conduct to produce the result and in each case the defendant's negligence consists in failure to protect the plaintiff against that very risk. Obviously the defendant cannot be relieved from liability by the fact that the risk or a substantial and important part of the risk, to which the defendant has subjected the plaintiff has indeed come to pass. Foreseeable intervening forces are within the scope original risk, and hence of the defendant's negligence. The courts are quite generally agreed that intervening causes which fall fairly in this category will not supersede the defendant's responsibility. Thus it has been held that a defendant will be required to anticipate the usual weather of the vicinity, including all ordinary forces of nature such as usual wind or rain, or snow or frost or fog or even lightning; that one who leaves an obstruction on the road or a railroad track should foresee that a vehicle or a train will run into it; ... The risk created by the defendant may include the intervention of the foreseeable negligence of others. ... [The standard of reasonable conduct may require the defendant to protect the plaintiff against 'that occasional negligence which is one of the ordinary incidents of human life, and therefore to be anticipated.' Thus, a defendant who blocks the sidewalk and forces the plaintiff to walk in a street where the plaintiff will be exposed to the risks of heavy traffic becomes liable when the plaintiff is run down by a car, even though the car is negligently driven; and one who parks an automobile on the highway without lights at night is not relieved of responsibility when another negligently drives into it. --- 10 We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate and proximate cause" of the injury remained the truck driver's "lack of due care" and that consequently respondent Dionisio may recover damages though such damages are subject to mitigation by the courts (Article 2179, Civil Code of the Philippines). Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory here of petitioners is that while the petitioner truck driver was negligent, private respondent Dionisio had the "last clear chance" of avoiding the accident and hence his injuries, and that Dionisio having failed to take that "last clear chance" must bear his own injuries alone. The last clear chance doctrine of the common law was imported into our jurisdiction by Picart vs. Smith 11 but it is a matter for debate whether, or to what extent, it has found its way into the Civil Code of the Philippines. The historical function of that doctrine in the common law was to mitigate the harshness of another common law doctrine or rule that of contributory negligence. 12 The common law rule of contributory negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff's negligence was relatively minor as compared with the wrongful act or omission of the defendant. 13 The common law notion of last clear chance permitted courts to grant recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to do so. 14 Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil Code of the Philippines. 15 Is there perhaps a general concept of "last clear chance" that may be extracted from its common law matrix and utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do not believe so. Under Article 2179, the task of a court, in technical terms, is to determine whose negligence — the plaintiff's or the defendant's — was the legal or proximate cause of the injury. That task is not simply or even primarily an exercise in chronology or physics, as the petitioners seem to imply by the use of terms like "last" or "intervening" or "immediate." The relative location in the continuum of time of the plaintiff's and the defendant's negligent acts or omissions, is only one of the relevant factors that may be taken into account. Of more fundamental importance are the nature of the negligent act or omission of each party and the character and gravity of the risks created by such act or omission for the rest of the community. The petitioners urge that the truck driver (and therefore his employer) should be absolved from responsibility for his own prior negligence because the unfortunate plaintiff failed to act with that increased diligence which had become necessary to avoid the peril precisely created by the truck driver's own wrongful act or omission. To accept this proposition is to come too close to wiping out the fundamental principle of law that a man must respond for the forseeable consequences of his own negligent act or omission. Our law on quasi-delicts seeks to reduce the risks and burdens of living in society and to allocate them among the members of society. To accept the petitioners' pro-position must tend to weaken the very bonds of society. Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his employer Phoenix 16 in supervising its employees properly and adequately. The respondent appellate court in effect found, correctly in our opinion, that Phoenix was not able to overcome this presumption of negligence. The circumstance that Phoenix had allowed its truck driver to bring the dump truck to his home whenever there was work to be done early the following morning, when coupled with the failure to show any effort on the part of Phoenix to supervise the manner in which the dump truck is parked when away from company premises, is an affirmative showing of culpa in vigilando on the part of Phoenix. Turning to the award of damages and taking into account the comparative negligence of private respondent Dionisio on one hand and petitioners Carbonel and Phoenix upon the other hand, 17 we believe that the demands of substantial justice are satisfied by allocating most of the damages on a 20-80 ratio. Thus, 20% of the damages awarded by the respondent appellate court, except the award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and costs, shall be borne by private respondent Dionisio; only the balance of 80% needs to be paid by petitioners Carbonel and Phoenix who shall be solidarity liable therefor to the former. The award of exemplary damages and attorney's fees and costs shall be borne exclusively by the petitioners. Phoenix is of course entitled to reimbursement from Carbonel. 18 We see no sufficient reason for disturbing the reduced award of damages made by the respondent appellate court. WHEREFORE, the decision of the respondent appellate court is modified by reducing the aggregate amount of compensatory damages, loss of expected income and moral damages private respondent Dionisio is entitled to by 20% of such amount. Costs against the petitioners. SO ORDERED. Yap (Chairman), Narvasa, Cruz, Gancayco and Sarmiento, JJ., concur. Melencio-Herrera, J., is on leave. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 156521 April 26, 2006 JULITO OPERIANO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent DECISION QUISUMBING, J.: For review on certiorari is the Decision1 dated July 5, 2002 of the Court of Appeals in CA-G.R. CR No. 21547, which affirmed the decision 2 of Regional Trial Court of Bohol convicting petitioner Julito Operiano of homicide. Also assailed is the appellate court’s Resolution3 dated November 15, 2002, denying the motion for reconsideration. Petitioner Julito Operiano and his father, Justino Operiano, were charged with homicide under an Information which reads: That, on or about the 8th day of December, 1995, in the City of Tagbilaran, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping with one another with force and violence and without any justifiable cause, did then and there willfully, unlawfully and feloniously, with the intent to kill, attack, assault and box one Alberto Penales, thereby inflicting upon him SEVERE HEAD INJURIES, which injuries directly caused his death, to the damage and prejudice of his heirs, in the amount to be proved during the trial of the case. Acts committed contrary to the provisions of Article 249 of the Revised Penal Code. 4 On arraignment, both father and son pleaded not guilty. Both the trial court and the appellate court agree on the following factual findings: At 7:30 p.m. of December 8, 1995, eyewitness Felix Olmillo, Jr. and his wife were waiting for a tricycle at Marapao Street corner Torralba Street, Tagbilaran City. 5 Felix, Jr. saw Justino Operiano punch the victim Alberto Penales on the face and then petitioner kick him on the abdomen. 6 Alberto fell, such that the back of his head hit the asphalt road.7 Another eyewitness, Alberto’s brother, Fortunato Penales, Jr., corroborated Felix’s testimony. 8 Fortunato, Jr. testified that he saw petitioner and his father immediately left on board their Ford Fierra. 9 The witness Fortunato, Jr. said he brought Alberto to the provincial hospital. 10 Dr. Rolando Po11 of Celestino Gallares Memorial Hospital, the Bohol provincial hospital, testified as per his medical finding that Alberto suffered "linear fracture occipital bone left" 12 or "fracture at the back of the head."13 Alberto was discharged from the hospital on December 16, 1995. 14 Two days later, Alberto was re-admitted to the same hospital. At 1:30 a.m., December 19, 1995, his condition worsened. Dr. Rosali Ray Atup 15 testified that Alberto was in "distress". Despite efforts to decrease the swelling of his brain,16 Alberto died at 3:20 a.m.17 The immediate cause was "CP Arrest secondary to uncal herniation", which means that the heart and lungs stopped functioning. 18 The antecedent cause was "intracranial hemorrhage". The underlying cause was the head injury. 19 For his defense, petitioner testified that a person unknown to him, carried and left the drunken Alberto near their passenger vehicle.20 The back of Alberto’s head had hit the cemented road. 21 Moments later, Alberto got up and started clawing Justino. 22 When he told Alberto to stop, Alberto turned against him. 23 Irritated, he kicked Alberto’s left leg. 24 Petitioner added that they left because some of their passengers had started to alight.25 On July 21, 1997, the trial court convicted Julito Operiano and Justino Operiano. The decretal portion of its decision reads: WHEREFORE, in Criminal Case No. 9571, the Court finds accused Justino Operiano and Julito Operiano, guilty beyond reasonable doubt of the crime of Homicide, defined and penalized under Article 249 of the Revised Penal Code, as embraced in the aforequoted information. Appreciating in favor of the accused the mitigating circumstance of lack of intent to commit so grave a wrong, the said circumstance not having been offset by any aggravating circumstance adduced and proven during the trial, and applying the Indeterminate Sentence Law, the Court hereby sentences both accused to suffer the indeterminate penalty of imprisonment from SIX (6) YEARS and ONE (1) DAY of Prision Mayor, as minimum, to TEN (10) YEARS of Prision Mayor, as maximum, with the accessory penalties of the law, to indemnify the heirs of the victim, damages in the sum of P50,000.00; funeral expenses in the amount of P20,000.00; attorney’s fees in the sum of P10,000.00 and to pay the costs. The accused are hereby credited in full of the period of their preventive imprisonment in accordance with Article 29 of the Revised Penal Code, as amended. SO ORDERED.26 Petitioner and his father appealed. The Court of Appeals affirmed petitioner’s conviction but modified the maximum penalty of imprisonment imposed by the trial court. The appellate court found that petitioner’s father was guilty of slight physical injuries only. The dispositive portion of the decision reads: IN VIEW WHEREOF, the Court affirms the appealed decision with modifications. Accused-appellant Julito Operiano is found guilty of the crime of Homicide and is sentenced, after appreciating in his favor the mitigating circumstance of lack of intent to commit so grave a wrong and applying the Indeterminate Sentence Law, to suffer the indeterminate penalty of SIX (6) YEARS and ONE (1) DAY OF PRISION MAYOR, as minimum, to TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal, as maximum, with the accessory penalties of the law. He is further ordered to indemnify the heirs of the deceased Alberto Penales the sum of P50,000.00, funeral expenses in the amount of P3,180.00, attorney’s fees of P10,000.00 and the costs. Accused-appellant Justino Operiano is found guilty of the crime of Slight Physical Injuries and is sentenced to pay a fine of P200.00. SO ORDERED.27 After the appellate court denied his motion for reconsideration on November 15, 2002, petitioner Julito Operiano filed the instant petition, raising the following issues: I WHETHER OR NOT THE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL COURT’S DECISION THAT THE KICK DELIVERED BY PETITIONER WAS THE PROXIMATE CAUSE OF THE DEATH OF THE VICTIM ALBERTO PENALES AND IN AFFIRMING THE CONVICTION OF PETITIONER FOR HOMICIDE. II WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO CONSIDER AND APPRECIATE, AS THE TRIAL COURT LIKEWISE FAILED TO CONSIDER AND APPRECIATE, THE EVIDENCE OF EVENTS THAT OCCURRED PRIOR TO THE CONFRONTATION BETWEEN VICTIM ALBERTO PENALES AND JUSTINO OPERIANO. III WHETHER OR NOT APPELLATE COURTS CAN OVERTURN THE FINDINGS OF FACT BY A TRIAL OR LOWER COURT.28 Simply put, the issues submitted for resolution are: (1) Did the trial and appellate courts err in ruling that petitioner’s kick was the proximate cause of Alberto’s death? (2) Did they err in their appreciation of the events prior to the confrontation between petitioner and Alberto? (3) Did they err in convicting petitioner of homicide? Petitioner asks us to overturn the factual findings of the trial and appellate courts for alleged misapprehension of the evidence. He contends that there is no evidence proving beyond reasonable doubt his culpability for Alberto’s head injury and subsequent death. He insists that Alberto already suffered physical injuries before clawing Justino, but the trial court disregarded the testimonies of defense witnesses. Petitioner further contends that the testimonies of Felix and Fortunato lack credibility. The Office of the Solicitor General counters that no compelling reason has been shown by petitioner to disturb the factual findings of the trial and appellate courts that it was petitioner who inflicted Alberto’s fatal head injury. Petitioner’s arguments raise issues on factual matters, thereby entailing a review of the credibility of witnesses and their testimonies. However, these matters are improper in a petition for review under Rule 45 of the Rules of Court. As a rule, only questions of law should be raised in a petition for review under Rule 45.29 Findings of fact of the Court of Appeals affirming those of the trial court bind this Court, unless the findings of the trial and appellate courts are palpably unsupported by the evidence on record or unless the judgment itself is based on misapprehension of facts. 30 Besides, petitioner himself admitted that he kicked Alberto when he lost his patience after Alberto clawed him also. Petitioner’s father and Johnny Cemini, 31 a defense witness, also testified that petitioner kicked Alberto. That petitioner’s kick was the proximate and immediate cause of Alberto’s head injury, causing his death is beyond cavil. The kicking of the victim by petitioner is the first and immediate act that produced the injury and set the other events in motion, each having a close causal connection with its immediate predecessor,32 in a continuous chain of events leading to Alberto’s death. Felix’s and Fortunato’s eyewitness accounts corroborated each other’s testimonies. The transcript of stenographic notes are instructive, to wit: [Felix’s testimony] Q Now, after you saw Tino Operiano boxed and hitting the right face of the person of Alberto Penales, what happened next? A Julito Operiano also used his right foot and [and] made a front kick at Alberto. Q In Judo or martial arts terminology, how do you call that? A Flying kick. xxxx Q Where, in what part of the body of Alberto Penales was hit by the flying kick of Julito Operiano? A In front of his body. xxxx COURT: The proper term should be … in the abdominal region. Proceed. ATTY. MARAPAO: Q After Alberto Penales was hit in the abdom[i]nal region … what happened to Alberto Penales? A He fell down. Q What was the position of Alberto Penales when he fell? A When he fell down he was facing upwards. Q And did a part of the body of Alberto Penales hit the road? A Yes, sir. Q This Marapao street what is the terrain? A It is an asphalt road. Q What portion of his body … hit the asphalt road? … A The back of his head.33 [Fortunato’s testimony] Q Now, after your brother Alberto Penales was hit on the right eye by the right fist of Tino Operiano what happened next? A His son, Julie Operiano made a flying kick. Q To whom was the flying kick of Julie Operiano directed? A The flying kick was directed towards above the abdomen. Q Of whom, mention the name? A My brother, Alberto Penales. xxxx Q Now, when your brother was hit at the upper portion of his abdomen by the flying kick … what happened next? A Alberto fell down and his head hit on the street. Q What part or portion of his head hit the street? A Back of his head.34 On cross-examination by defense counsel as well as by the trial judge, Felix and Fortunato remained steadfast in their testimonies. The eyewitness testimonies of Felix and Alberto’s brother, Fortunato, conclusively support the finding that petitioner’s kick caused Alberto to fall and hit the back of his head on the asphalt road. This is validated by the medico-legal certificate which identified Alberto’s injury as "linear fracture occipital bone left" or "fracture at the back of the head." Beyond a shadow of doubt, Alberto’s head injury was the underlying cause of his death 11 days later. Alberto’s death certificate reads: CAUSES OF DEATH Immediate cause: a. CP Arrest 2o to Uncal Herniation Antecedent cause: b. Intracranial Hemorrhage Chronic Underlying cause: c. Head Injury35 On the witness stand, Dr. Rosali Ray Atup, the attending physician of Alberto at the provincial hospital, ably presented his medical findings. No contradictory evidence has been presented to overturn his medical conclusions in this case. Moreover, the defense presentation of its case contains gaps and inconsistencies. For instance, defense witness Ben Cantina36 testified that it was Oming Olmillo who punched Alberto. Ben Cantina came to know Oming Olmillo’s name three days after the December 8, 1995 incident, 37 yet Ben did not identify Oming in his January 9, 1996 affidavit. 38 Defense witness Calixta Miculob declared that Alberto was carried by two persons before he was dropped. 39 But for their part, petitioner, his father and Johnny Cemini testified that it was a friend of Oming Olmillo who carried Alberto. 40 Johnny Cemini also testified that Alberto was dropped off,41 but merely stated in his affidavit42 that Alberto was only placed near Justino’s vehicle. Lastly, we agree with the trial and appellate courts that the circumstance of having no intention to commit so grave a wrong serves to mitigate Julito’s liability. 43 Thus, the appellate court did not err in modifying petitioner’s sentence and civil liabilities. WHEREFORE, the petition is DENIED for lack of merit. The Court of Appeals’ Decision dated July 5, 2002 and its Resolution dated November 15, 2002 in CA-G.R. CR No. 21547 are AFFIRMED.1avvphil.net SO ORDERED. LEONARDO A. QUISUMBING Associate Justice Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 85691 July 31, 1990 BACHELOR EXPRESS, INCORPORATED, and CRESENCIO RIVERA, petitioners, vs. THE HONORABLE COURT OF APPEALS (Sixth Division), RICARDO BETER, SERGIA BETER, TEOFILO RAUTRAUT and ZOETERA RAUTRAUT, respondents. Aquino W. Gambe for petitioners. Tranquilino O. Calo, Jr. for private respondents. GUTIERREZ, JR., J.: This is a petition for review of the decision of the Court of Appeals which reversed and set aside the order of the Regional Trial Court, Branch I, Butuan City dismissing the private respondents' complaint for collection of "a sum of money" and finding the petitioners solidarily liable for damages in the total amount of One Hundred Twenty Thousand Pesos (P120,000.00). The petitioners also question the appellate court's resolution denying a motion for reconsideration. On August 1, 1980, Bus No. 800 owned by Bachelor Express, Inc. and driven by Cresencio Rivera was the situs of a stampede which resulted in the death of passengers Ornominio Beter and Narcisa Rautraut. The evidence shows that the bus came from Davao City on its way to Cagayan de Oro City passing Butuan City; that while at Tabon-Tabon, Butuan City, the bus picked up a passenger; that about fifteen (15) minutes later, a passenger at the rear portion suddenly stabbed a PC soldier which caused commotion and panic among the passengers; that when the bus stopped, passengers Ornominio Beter and Narcisa Rautraut were found lying down the road, the former already dead as a result of head injuries and the latter also suffering from severe injuries which caused her death later. The passenger assailant alighted from the bus and ran toward the bushes but was killed by the police. Thereafter, the heirs of Ornominio Beter and Narcisa Rautraut, private respondents herein (Ricardo Beter and Sergia Beter are the parents of Ornominio while Teofilo Rautraut and Zoetera [should be Zotera] Rautraut are the parents of Narcisa) filed a complaint for "sum of money" against Bachelor Express, Inc. its alleged owner Samson Yasay and the driver Rivera. In their answer, the petitioners denied liability for the death of Ornominio Beter and Narcisa Rautraut. They alleged that ... the driver was able to transport his passengers safely to their respective places of destination except Ornominio Beter and Narcisa Rautraut who jumped off the bus without the knowledge and consent, much less, the fault of the driver and conductor and the defendants in this case; the defendant corporation had exercised due diligence in the choice of its employees to avoid as much as possible accidents; the incident on August 1, 1980 was not a traffic accident or vehicular accident; it was an incident or event very much beyond the control of the defendants; defendants were not parties to the incident complained of as it was an act of a third party who is not in any way connected with the defendants and of which the latter have no control and supervision; ..." (Rollo, pp. 112-113). i•t•c-aüsl After due trial, the trial court issued an order dated August 8, 1985 dismissing the complaint. Upon appeal however, the trial court's decision was reversed and set aside. The dispositive portion of the decision of the Court of Appeals states: WHEREFORE, the Decision appealed from is REVERSED and SET ASIDE and a new one entered finding the appellees jointly and solidarily liable to pay the plaintiffs-appellants the following amounts: 1) To the heirs of Ornominio Beter, the amount of Seventy Five Thousand Pesos (P75,000.00) in loss of earnings and support, moral damages, straight death indemnity and attorney's fees; and, 2) To the heirs of Narcisa Rautraut, the amount of Forty Five Thousand Pesos (P45,000.00) for straight death indemnity, moral damages and attorney's fees. Costs against appellees. (Rollo, pp. 71-72) The petitioners now pose the following questions What was the proximate cause of the whole incident? Why were the passengers on board the bus panicked (sic) and why were they shoving one another? Why did Narcisa Rautraut and Ornominio Beter jump off from the running bus? The petitioners opine that answers to these questions are material to arrive at "a fair, just and equitable judgment." (Rollo, p. 5) They claim that the assailed decision is based on a misapprehension of facts and its conclusion is grounded on speculation, surmises or conjectures. As regards the proximate cause of the death of Ornominio Beter and Narcisa Rautraut, the petitioners maintain that it was the act of the passenger who ran amuck and stabbed another passenger of the bus. They contend that the stabbing incident triggered off the commotion and panic among the passengers who pushed one another and that presumably out of fear and moved by that human instinct of selfpreservation Beter and Rautraut jumped off the bus while the bus was still running resulting in their untimely death." (Rollo, p. 6) Under these circumstances, the petitioners asseverate that they were not negligent in the performance of their duties and that the incident was completely and absolutely attributable to a third person, the passenger who ran amuck, for without his criminal act, Beter and Rautraut could not have been subjected to fear and shock which compelled them to jump off the running bus. They argue that they should not be made liable for damages arising from acts of third persons over whom they have no control or supervision. Furthermore, the petitioners maintain that the driver of the bus, before, during and after the incident was driving cautiously giving due regard to traffic rules, laws and regulations. The petitioners also argue that they are not insurers of their passengers as ruled by the trial court. The liability, if any, of the petitioners is anchored on culpa contractual or breach of contract of carriage. The applicable provisions of law under the New Civil Code are as follows: ART. 1732. Common carriers are persons, corporations, firms or associations engaged in the business of carrying or transporting passengers or goods or both by land, water, or air, for compensation, offering their services to the public. ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case. xxx xxx xxx ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances. ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in Articles 1733 and 1755. There is no question that Bachelor Express, Inc. is a common carrier. Hence, from the nature of its business and for reasons of public policy Bachelor Express, Inc. is bound to carry its passengers safely as far as human care and foresight can provide using the utmost diligence of very cautious persons, with a due regard for all the circumstances. In the case at bar, Ornominio Beter and Narcisa Rautraut were passengers of a bus belonging to petitioner Bachelor Express, Inc. and, while passengers of the bus, suffered injuries which caused their death. Consequently, pursuant to Article 1756 of the Civil Code, petitioner Bachelor Express, Inc. is presumed to have acted negligently unless it can prove that it had observed extraordinary diligence in accordance with Articles 1733 and 1755 of the New Civil Code. Bachelor Express, Inc. denies liability for the death of Beter and Rautraut on its posture that the death of the said passengers was caused by a third person who was beyond its control and supervision. In effect, the petitioner, in order to overcome the presumption of fault or negligence under the law, states that the vehicular incident resulting in the death of passengers Beter and Rautraut was caused by force majeure or caso fortuito over which the common carrier did not have any control. Article 1174 of the present Civil Code states: Except in cases expressly specified by law, or when it is otherwise declared by stipulations, or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which though foreseen, were inevitable. The above-mentioned provision was substantially copied from Article 1105 of the old Civil Code which states" No one shall be liable for events which could not be foreseen or which, even if foreseen, were inevitable, with the exception of the cases in which the law expressly provides otherwise and those in which the obligation itself imposes liability. In the case of Lasam v. Smith (45 Phil. 657 [1924]), we defined "events" which cannot be foreseen and which, having been foreseen, are inevitable in the following manner: ... The Spanish authorities regard the language employed as an effort to define the term 'caso fortuito' and hold that the two expressions are synonymous. (Manresa Comentarios al Codigo Civil Español, vol. 8, pp. 88 et seq.; Scaevola, Codigo Civil, vol. 19, pp. 526 et seq.) The antecedent to Article 1105 is found in Law II, Title 33, Partida 7, which defines caso fortuito as 'occasion que acaese por aventura de que non se puede ante ver. E son estos, derrivamientos de casas e fuego que enciende a so ora, e quebrantamiento de navio, fuerca de ladrones' (An event that takes place by incident and could not have been foreseen. Examples of this are destruction of houses, unexpected fire, shipwreck, violence of robbers ...) Escriche defines caso fortuito as an unexpected event or act of God which could neither be foreseen nor resisted, such as floods, torrents, shipwrecks, conflagrations, lightning, compulsion, insurrections, destruction of buildings by unforeseen accidents and other occurrences of a similar nature. In discussing and analyzing the term caso fortuito the Enciclopedia Juridica Española says: 'In a legal sense and, consequently, also in relation to contracts, a caso fortuito presents the following essential characteristics: (1) The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will. (2) It must be impossible to foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must be impossible to avoid. (3) The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner. And (4) the obligor (debtor) must be free from any participation in the aggravation of the injury resulting to the creditor. (5) Enciclopedia Juridica Española, 309) As will be seen, these authorities agree that some extraordinary circumstance independent of the will of the obligor or of his employees, is an essential element of a caso fortuito. ... The running amuck of the passenger was the proximate cause of the incident as it triggered off a commotion and panic among the passengers such that the passengers started running to the sole exit shoving each other resulting in the falling off the bus by passengers Beter and Rautraut causing them fatal injuries. The sudden act of the passenger who stabbed another passenger in the bus is within the context of force majeure. However, in order that a common carrier may be absolved from liability in case of force majeure, it is not enough that the accident was caused by force majeure. The common carrier must still prove that it was not negligent in causing the injuries resulting from such accident. Thus, as early as 1912, we ruled: From all the foregoing, it is concluded that the defendant is not liable for the loss and damage of the goods shipped on the lorcha Pilar by the Chinaman, Ong Bien Sip, inasmuch as such loss and damage were the result of a fortuitous event or force majeure, and there was no negligence or lack of care and diligence on the part of the defendant company or its agents . (Tan Chiong Sian v. Inchausti & Co., 22 Phil. 152 [1912]; Emphasis supplied). This principle was reiterated in a more recent case, Batangas Laguna Tayabas Co. v. Intermediate Appellate Court (167 SCRA 379 [1988]), wherein we ruled: ... [F]or their defense of force majeure or act of God to prosper the accident must be due to natural causes and exclusively without human intervention. (Emphasis supplied) Therefore, the next question to be determined is whether or not the petitioner's common carrier observed extraordinary diligence to safeguard the lives of its passengers. In this regard the trial court and the appellate court arrived at conflicting factual findings. The trial court found the following facts: The parties presented conflicting evidence as to how the two deceased Narcisa Rautruat and Ornominio Beter met their deaths. However, from the evidence adduced by the plaintiffs, the Court could not see why the two deceased could have fallen off the bus when their own witnesses testified that when the commotion ensued inside the bus, the passengers pushed and shoved each other towards the door apparently in order to get off from the bus through the door. But the passengers also could not pass through the door because according to the evidence the door was locked. On the other hand, the Court is inclined to give credence to the evidence adduced by the defendants that when the commotion ensued inside the bus, the two deceased panicked and, in state of shock and fear, they jumped off from the bus by passing through the window. It is the prevailing rule and settled jurisprudence that transportation companies are not insurers of their passengers. The evidence on record does not show that defendants' personnel were negligent in their duties. The defendants' personnel have every right to accept passengers absent any manifestation of violence or drunkenness. If and when such passengers harm other passengers without the knowledge of the transportation company's personnel, the latter should not be faulted. (Rollo, pp. 46-47) A thorough examination of the records, however, show that there are material facts ignored by the trial court which were discussed by the appellate court to arrive at a different conclusion. These circumstances show that the petitioner common carrier was negligent in the provision of safety precautions so that its passengers may be transported safely to their destinations. The appellate court states: A critical eye must be accorded the lower court's conclusions of fact in its tersely written ratio decidendi. The lower court concluded that the door of the bus was closed; secondly, the passengers, specifically the two deceased, jumped out of the window. The lower court therefore concluded that the defendant common carrier is not liable for the death of the said passengers which it implicitly attributed to the unforeseen acts of the unidentified passenger who went amuck. There is nothing in the record to support the conclusion that the solitary door of the bus was locked as to prevent the passengers from passing through. Leonila Cullano, testifying for the defense, clearly stated that the conductor opened the door when the passengers were shouting that the bus stop while they were in a state of panic. Sergia Beter categorically stated that she actually saw her son fall from the bus as the door was forced open by the force of the onrushing passengers. Pedro Collango, on the other hand, testified that he shut the door after the last passenger had boarded the bus. But he had quite conveniently neglected to say that when the passengers had panicked, he himself panicked and had gone to open the door. Portions of the testimony of Leonila Cullano, quoted below, are illuminating: xxx xxx xxx Q When you said the conductor opened the door, the door at the front or rear portion of the bus? A Front door. Q And these two persons whom you said alighted, where did they pass, the fron(t) door or rear door? A Front door. xxx xxx xxx (Tsn., p. 4, Aug. 8, 1984) xxx xxx xxx Q What happened after there was a commotion at the rear portion of the bus? A When the commotion occurred, I stood up and I noticed that there was a passenger who was sounded (sic). The conductor panicked because the passengers were shouting 'stop, stop'. The conductor opened the bus.' (Tsn. p. 3, August 8, 1984). Accordingly, there is no reason to believe that the deceased passengers jumped from the window when it was entirely possible for them to have alighted through the door. The lower court's reliance on the testimony of Pedro Collango, as the conductor and employee of the common carrier, is unjustified, in the light of the clear testimony of Leonila Cullano as the sole uninterested eyewitness of the entire episode. Instead we find Pedro Collango's testimony to be infused by bias and fraught with inconsistencies, if not notably unreliable for lack of veracity. On direct examination, he testified: xxx xxx xxx Q So what happened to the passengers inside your bus? A Some of the passengers jumped out of the window. COURT: Q While the bus was in motion? A Yes, your Honor, but the speed was slow because we have just picked up a passenger. Atty. Gambe: Q You said that at the time of the incident the bus was running slow because you have just picked up a passenger. Can you estimate what was your speed at that time? Atty. Calo: No basis, your Honor, he is neither a driver nor a conductor. COURT: Let the witness answer. Estimate only, the conductor experienced. Witness: Not less than 30 to 40 miles. COURT: Kilometers or miles? A Miles. Atty. Gambe: Q That is only your estimate by your experience? A Yes, sir, estimate. (Tsn., pp. 4-5, Oct. 17, 1983). At such speed of not less than 30 to 40 miles ..., or about 48 to 65 kilometers per hour, the speed of the bus could scarcely be considered slow considering that according to Collango himself, the bus had just come from a full stop after picking a passenger (Tsn, p. 4, Id.) and that the bus was still on its second or third gear (Tsn., p. 12, Id.). In the light of the foregoing, the negligence of the common carrier, through its employees, consisted of the lack of extraordinary diligence required of common carriers, in exercising vigilance and utmost care of the safety of its passengers, exemplified by the driver's belated stop and the reckless opening of the doors of the bus while the same was travelling at an appreciably fast speed. At the same time, the common carrier itself acknowledged, through its administrative officer, Benjamin Granada, that the bus was commissioned to travel and take on passengers and the public at large, while equipped with only a solitary door for a bus its size and loading capacity, in contravention of rules and regulations provided for under the Land Transportation and Traffic Code (RA 4136 as amended.) (Rollo, pp. 23-26) Considering the factual findings of the Court of Appeals-the bus driver did not immediately stop the bus at the height of the commotion; the bus was speeding from a full stop; the victims fell from the bus door when it was opened or gave way while the bus was still running; the conductor panicked and blew his whistle after people had already fallen off the bus; and the bus was not properly equipped with doors in accordance with law-it is clear that the petitioners have failed to overcome the presumption of fault and negligence found in the law governing common carriers. The petitioners' argument that the petitioners "are not insurers of their passengers" deserves no merit in view of the failure of the petitioners to prove that the deaths of the two passengers were exclusively due to force majeure and not to the failure of the petitioners to observe extraordinary diligence in transporting safely the passengers to their destinations as warranted by law. (See Batangas Laguna Tayabas Co. v. Intermediate Appellate Court, supra). The petitioners also contend that the private respondents failed to show to the court that they are the parents of Ornominio Beter and Narcisa Rautraut respectively and therefore have no legal personality to sue the petitioners. This argument deserves scant consideration. We find this argument a belated attempt on the part of the petitioners to avoid liability for the deaths of Beter and Rautraut. The private respondents were Identified as the parents of the victims by witnesses during the trial and the trial court recognized them as such. The trial court dismissed the complaint solely on the ground that the petitioners were not negligent. Finally, the amount of damages awarded to the heirs of Beter and Rautraut by the appellate court is supported by the evidence. The appellate court stated: Ornominio Beter was 32 years of age at the time of his death, single, in good health and rendering support and service to his mother. As far as Narcisa Rautraut is concerned, the only evidence adduced is to the effect that at her death, she was 23 years of age, in good health and without visible means of support. In accordance with Art. 1764 in conjunction with Art. 2206 of the Civil Code, and established jurisprudence, several factors may be considered in determining the award of damages, namely: 1) life expectancy (considering the state of health of the deceased and the mortality tables are deemed conclusive) and loss of earning capacity; (2) pecuniary loss, loss of support and service; and (3) moral and mental suffering (Alcantara, et al. v. Surro, et al., 93 Phil. 470). In the case of People v. Daniel (No. L-66551, April 25, 1985, 136 SCRA 92, at page 104), the High Tribunal, reiterating the rule in Villa Rey Transit, Inc. v. Court of Appeals (31 SCRA 511), stated that the amount of loss of earring capacity is based mainly on two factors, namely, (1) the number of years on the basis of which the damages shall be computed; and (2) the rate at which the losses sustained by the heirs should be fixed. As the formula adopted in the case of Davila v. Philippine Air Lines, 49 SCRA 497, at the age of 30 one's normal life expectancy is 33-1/3 years based on the American Expectancy Table of Mortality (2/3 x 80-32).i•t•c-aüsl By taking into account the pace and nature of the life of a carpenter, it is reasonable to make allowances for these circumstances and reduce the life expectancy of the deceased Ornominio Beter to 25 years (People v. Daniel, supra). To fix the rate of losses it must be noted that Art. 2206 refers to gross earnings less necessary living expenses of the deceased, in other words, only net earnings are to be considered (People v. Daniel, supra; Villa Rey Transit, Inc. v. Court of Appeals, supra). Applying the foregoing rules with respect to Ornominio Beter, it is both just and reasonable, considering his social standing and position, to fix the deductible, living and incidental expenses at the sum of Four Hundred Pesos (P400.00) a month, or Four Thousand Eight Hundred Pesos (P4,800.00) annually. As to his income, considering the irregular nature of the work of a daily wage carpenter which is seasonal, it is safe to assume that he shall have work for twenty (20) days a month at Twenty Five Pesos (P150,000.00) for twenty five years. Deducting therefrom his necessary expenses, his heirs would be entitled to Thirty Thousand Pesos (P30,000.00) representing loss of support and service (P150,000.00 less P120,000.00). In addition, his heirs are entitled to Thirty Thousand Pesos (P30,000.00) as straight death indemnity pursuant to Article 2206 (People v. Daniel, supra). For damages for their moral and mental anguish, his heirs are entitled to the reasonable sum of P10,000.00 as an exception to the general rule against moral damages in case of breach of contract rule Art. 2200 (Necesito v. Paras, 104 Phil. 75). As attorney's fees, Beter's heirs are entitled to P5,000.00. All in all, the plaintiff-appellants Ricardo and Sergia Beter as heirs of their son Ornominio are entitled to an indemnity of Seventy Five Thousand Pesos (P75,000.00). In the case of Narcisa Rautraut, her heirs are entitled to a straight death indemnity of Thirty Thousand Pesos (P30,000.00), to moral damages in the amount of Ten Thousand Pesos (P10,000.00) and Five Thousand Pesos (P5,000.00) as attorney's fees, or a total of Forty Five Thousand Pesos (P45,000.00) as total indemnity for her death in the absence of any evidence that she had visible means of support. (Rollo, pp. 30-31) WHEREFORE, the instant petition is DISMISSED. The questioned decision dated May 19, 1988 and the resolution dated August 1, 1988 of the Court of Appeals are AFFIRMED. SO ORDERED. Fernan, C.J., (Chairman), Feliciano, Bidin and Cortes, JJ., concur. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. L-53969 February 21, 1989 PURIFICACION SAMALA and LEONARDO ESGUERRA, petitioners, vs. HON. LUIS L. VICTOR, CFI of Cavite, Br. II, EMERITA C. JUMANAN and RICARDO JUMANAN, respondents. Franco L. Loyola for petitioners. Jose T Cajulis for respondents. FERNAN, C.J.: This is a petition for review on certiorari seeking the reversal of the decision of the Court of First Instance of Cavite, Branch II, Cavite City, in Civil Case No. N-2411 entitled: "Emerita C. Jumanan, et al., plaintiffs, v. Felisa R. Garcia, et al, defendants; Felisa R. Garcia, et al., third-party plaintiffs, v. Purificacion Samala, et al., third-party defendants; Purificacion Samala, fourth-party plaintiff, v. The Imperial Insurance, Inc., fourth-party defendant", absolving the defendants from any liability and ordering the third party defendants and fourth party plaintiffs, Purificacion Samala and Leonardo Esguerra (petitioners herein) and the fourth party defendant Imperial Insurance, Inc., jointly and severally to pay to plaintiffs (respondent herein) the damages mentioned in the decision. 1 The factual background of this case as found by the trial court is as follows: At approximately 6:30 o'clock in the morning of February 7, 1976, plaintiff Emerita C. Jumanan was riding a passenger jeepney on her way from her residence at Binakayan, Kawit, Cavite to her place of work at the Department (now Ministry) of Public Information in Intramuros, Manila, where she was employed. The said passenger jeepney, which is owned by defendants Felisa and Tomas Garcia, was then being driven by defendant Virgilio Profeta and was bound for Manila carrying about twelve passengers. While the aforesaid passenger jeepney where Emerita C. Jumanan was riding was about to make a left turn on the road just below the bridge at Barrio Mabolo, Bacoor, Cavite, a delivery panel of the Luau restaurant bearing plate No. UH- 41373, driven by Domingo Medina was approaching from the opposite direction from Manila, followed by the Saint Raphael Transit passenger bus, owned by third party defendant Purificacion Samala and being driven by third party defendant Leonardo Esguerra. The Saint Raphael Transit passenger bus was running fast and after overtaking a vehicle the Saint Raphael Transit bumped the back portion of the delivery panel so violently and strongly causing the delivery panel to swerve abruptly to the path of the oncoming passenger jeepney in which plaintiff Emerita C. Jumanan was on board. So forceful was the impact of the collision between the delivery panel and the passenger jeepney that several passengers of the jeepney were injured, including plaintiff Emerita C. Jumanan. Taken to the National Orthopedic Hospital, after an emergency treatment at the Katigbak clinic at Binakayan, Kawit, Cavite, Emerita C. Jumanan was examined and found to be suffering from tenderness and swelling of the right thigh, tenderness over the left hip, tenderness over the nape and back of the neck of the right shoulder; limitation of left extremity, light limitation of motion of right extremity; contusion left hip right thigh and fracture of left inferior ramus of ischium Exhibits D and D-1). Admitted and treated at the National Orthopedic Hospital on February 7, 1976, Emerita C. Jumanan was discharged on a wheel chair on February 20, 1976 and advised to have complete bed rest for thirty days. 2 Emerita C. Jumanan, assisted by her husband Ricardo Jumanan, filed before the CFI of Cavite a complaint for damages arising from physical injuries suffered by her as a passenger of the jeepney bearing plate No. PUJ-VY-542 '75 allegedly owned and operated by the four-named defendants, spouses Felisa and Tomas Garcia, Emetiquio M. Jarin and Juanita Madlangbayan, and driven by the last named defendant, Virgilio Profeta. In their separate answers, both Jarin and Madlangbayan denied liability, claiming they no longer owned the passenger jeepney at the time of the incident in question, said ownership having been transferred to the spouses Garcia. While admitting to be the owners of the passenger jeepney, the spouses Garcia nonetheless denied liability, alleging that the vehicular collision complained of was attributable to the fault and negligence of the owner and driver of the Saint Raphael Transit passenger bus with plate No. XGY297 PUB- Phil. '75. Consequently, a third-party complaint was filed by defendants spouses Garcia and Virgilio Profeta against Purificacion Samala and Leonardo Esguerra, owner and driver, respectively, of the Saint Raphael Transit Bus. The latter defendants, in turn, filed a fourth-party complaint against the insurer of the Saint Raphael Transit Bus, Imperial Insurance, Inc., which was declared in default for failure to appear at the pre-trial conference. After trial, respondent Judge rendered a decision in favor of the defendants, the dispositive portion of which reads: PREMISES CONSIDERED, judgment is hereby rendered 1. Absolving defendants Felisa and Tomas Garcia, Virgilio Profeta, Juanita Madlangbayan and Emetiquio Jarin from any liability; 2. Ordering the third party defendants and fourth party plaintiffs, Purificacion Samala and Leonardo Esguerra, and the fourth party defendant Imperial Insurance, Inc., jointly and severally, to pay to plaintiffs Emerita C. Jumanan and Ricardo Jumanan the following-. (a) Actual or compensatory damages in the amount of P 7,958.83; (b) Moral damages in the amount of P 5,000.00; (c) Exemplary damages in the amount of P 3,000.00; and (d) Attorney's fees and expenses of litigation in the amount of P 2,000.00. Plus costs of this suit. SO ORDERED. 3 Third party defendants Purificacion Samala and Leonardo Esguerra moved to reconsider said decision, but to no avail. Hence, this appeal by certiorari, therein third party defendants (petitioners herein) contending that: 1. The lower court erred in holding that the third-party defendants and fourth party plaintiff and the fourth party defendant are jointly and severally liable to pay the claim of plaintiffs. 2. The third-party defendant and fourth-party plaintiff should be absolved from any liability since the principal defendants have been absolved from the claim of plaintiffs, a matter not appreciated by the lower court; 3. The lower court erred in not holding that since plaintiffs' cause of action is based on culpa contractual against the defendants only, they cannot recover from the third- party defendants fourth-party plaintiffs on a cause of action based on tort or quasi-delict. 4 At issue in this case is the nature and office of a third-party complaint. Appellants argue that since plaintiffs filed a complaint for damages against the defendants on a breach of contract of carriage, they cannot recover from the third-party defendants on a cause of action based on quasi-delict. The third party defendants, they allege, are never parties liable with respect to plaintiff s claim although they are with respect to the defendants for indemnification, subrogation, contribution or other reliefs. Consequently, they are not directly liable to the plaintiffs. Their liability commences only when the defendants are adjudged liable and not when they are absolved from liability as in the case at bar. 5 Quite apparent from these arguments is the misconception entertained by appellants with respect to the nature and office of a third party complaint. Section 16, Rule 6 of the Revised Rules of Court defines a third party complaint as a "claim that a defending party may, with leave of court, file against a person not a party to the action, called the thirdparty defendant, for contribution, indemnification, subrogation, or any other relief, in respect of his opponent's claim." In the case of Viluan vs. Court of appeals, et al., 16 SCRA 742 [1966], this Court had occasion to elucidate on the subjects covered by this Rule, thus: ... As explained in the Atlantic Cost Line R. Co. vs. U.S. Fidelity & Guaranty Co., 52 F. Supp. 177 (1943:) 'From the sources of Rule 146 and the decisions herein cited, it is clear that this rule, like the admiralty rule, 'covers two distinct subjects, the addition of parties defendant to the main cause of action, and the bringing in of a third party for a defendant's remedy over'. ... 'If the third party complaint alleges facts showing a third party's direct liability to plaintiff on the claim set out in plaintiffs petition, then third party 'shall' make his defenses as provided in Rule 12 and his counterclaims against plaintiff as provided in Rule 13. In the case of alleged direct liability, no amendment (to the complaint) is necessary or required. The subject-matter of the claim is contained in plaintiff's complaint, the ground of third party's liability on that claim is alleged in third party complaint, and third party's defense to set up in his answer to plaintiff's complaint. At that point and without amendment, the plaintiff and third party are at issue as to their rights respecting the claim. The provision in the rule that, 'The third-party defendant may assert any defense which the third-party plaintiff may assert to the plaintiffs claim,' applies to the other subject, namely, the alleged liability of third party defendant. The next sentence in the rule, 'The third-party defendant is bound by the adjudication of the third party plaintiffs liability to the plaintiff, as well as of his own to the plaintiff or to the third- party plaintiff applies to both subjects. If third party is brought in as liable only to defendant and judgment is rendered adjudicating plaintiff's right to recover against defendant and defendant's rights to recover against third party, he is bound by both adjudications. That part of the sentence refers to the second subject. If third party is brought in as liable to plaintiff, then third party is bound by the adjudication as between him and plaintiff. That refers to the first subject. If third party is brought in as liable to plaintiff and also over to defendant, then third party is bound by both adjudications. .... Under this Rule, a person not a party to an action may be impleaded by the defendant either (a) on an allegation of liability to the latter; (b) on the ground of direct liability to the plaintiff-, or, (c) both (a) and (b). The situation in (a) is covered by the phrase "for contribution, indemnity or subrogation;" while (b) and (c) are subsumed under the catch all "or any other relief, in respect of his opponent's claim." The case at bar is one in which the third party defendants are brought into the action as directly liable to the plaintiffs upon the allegation that "the primary and immediate cause as shown by the police investigation of said vehicular collision between (sic) the Above-mentioned three vehicles was the recklessness and negligence and lack of imprudence (sic) of the third-party defendant Virgilio (should be Leonardo) Esguerra y Ledesma then driver of the passenger bus." 7 The effects are that "plaintiff and third party are at issue as to their rights respecting the claim" and "the third party is bound by the adjudication as between him and plaintiff." It is not indispensable in the premises that the defendant be first adjudged liable to plaintiff before the third-party defendant may be held liable to the plaintiff, as precisely, the theory of defendant is that it is the third party defendant, and not he, who is directly liable to plaintiff. The situation contemplated by appellants would properly pertain to situation (a) above wherein the third party defendant is being sued for contribution, indemnity or subrogation, or simply stated, for a defendant's "remedy over". Anent appellant's claim that plaintiff who sued on contractual breach cannot recover on the basis of quasidelict, suffice it to say that as the primary purpose of this rule is to avoid circuity of action and to dispose of in one litigation, the entire subject matter arising from a particular set of fact 8 it is immaterial that the third-party plaintiff asserts a cause of action against the third party defendant on a theory different from that asserted by the plaintiff against the defendant. 9 It has likewise been held that "a defendant in a contract action may join as third-party defendants those liable to him in tort for the plaintiff s claim against him or directly to the plaintiff. 10 The incident complained of having been found to have been caused by the negligence of appellant Leonardo Esguerra, driver and employee of co-appellant Purificacion Samala, no reversible error was committed by the trial court in adjudging the latter liable to plaintiffs-appellees. WHEREFORE, the instant appeal by certiorari is hereby DISMISSED with costs against appellants. This decision is immediately executory. SO ORDERED. Gutierrez, Jr., Feliciano, Bidin, and Cortes, JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 95279 July 25, 1991 ESTATE OF GREGORIA FRANCISCO, herein represented by SILVESTRE F. TAN, Administrator, petitioner, vs. HON. COURT OF APPEALS, HON. SALVADOR A. MEMORACION, in his capacity as Presiding Judge of the Regional Trial Court of Isabela, Basilan Province, Branch 2, MUNICIPALITY OF ISABELA, Basilan Province, herein represented by BENJAMIN VALENCIA, in his capacity as Municipal Mayor, Isabela, Basilan Province, ROGELIO L. IGOT, FELICISIMO PIOQUINTO, DANIEL PADINAS, ANTONIO CABANGON, FELIX ROXAS, BENJAMIN FERRER, GREGORIO TABADA, EFREN DELOS REYES, FLORENCIO HUGO, JESUS FRANCISCO, ALFREDO TUBILAG, PABLO ANDRES, respondents. Bienvenido G. Martin for petitioner. Laurencio Saavedra for private respondents. MELENCIO-HERRERA, J.:p Litigated herein is a quonset building situated in Port Area, Strong Boulevard, Isabela, Basilan, which was ordered demolished by respondent Municipal Mayor, Benjamin Valencia. Respondent municipal employees implemented the demolition, for which reason they are also impleaded. The quonset was constructed by the American Liberation Forces in 1944. It was purchased in 1946 by Gregoria Francisco, who died in 1976. It stands on a lot owned by the Philippine Ports Authority and faces the municipal wharf. By virtue of Proclamation No. 83 issued by President Elpidio Quirino, said land was declared for the exclusive use of port facilities. On 10 January 1989, the Philippine Ports Authority (Port of Zamboanga) issued to Tan Gin San, surviving spouse of Gregoria Francisco, a permit to occupy the lot where the building stands for a period of one (1) year, to expire on 31 December 1989. The permittee was using the quonset for the storage of copra. On 8 May 1989, Respondent Mayor, through respondent Municipal Action Officer, notified Tan Gin San by mail to remove or relocate its quonset building, citing Zoning Ordinance No. 147 of the municipality; noting its antiquated and dilapidated structure; and. stressing the "clean-up campaign on illegal squatters and unsanitary surroundings along Strong Boulevard." This was followed by another letter of 19 May 1989 of the same tenor. Since the notifications remained unheeded by petitioner, Respondent Mayor ordered the demolition on 24 May 1989. Aggrieved, petitioner sought a Writ of Prohibition with Injunction and Damages before the Regional Trial Court of Basilan, Branch 2 (docketed as S.P. No. 4). On 7 August 1989, the Trial Court 1 denied the Writ of Prohibition and upheld the power of respondent Mayor to order the demolition without judicial authority, adverting to Zoning Ordinance No. 147 of the Municipality of Isabela, Basilan. Petitioner duly interposed an appeal. On 6 September 1989, petitioner's quonset building was completely demolished ( Rollo, p. 49). In its place sprang shanties and nipa huts, photographs of which have been attached to petitioner's Memorandum. On 25 January 1990, the Court of Appeals (in CA-G.R. SP No. 18822) 2 initially reversed the Trial Court and issued a Writ of Prohibition. It ruled that Respondent Mayor was not vested with power to order summarily, and without any judicial proceeding, the demolition of the quonset building, which was not a nuisance per se and that petitioner is in legal possession of the land on which the building stands by virtue of the permit issued by the Philippine Ports Authority (Zamboanga Province). The restoration to petitioner of the building materials removed upon demolition, and the payment to it of attorney's fees of P10,000.00, were also ordered. However, upon reconsideration sought by reswever, upon reconsideration sought by respondent officials, Respondent Court 3 reversed itself on 13 June 1990 stating that "although Municipal Mayor Valencia initially issued an order demolition without judicial process, the deficiency was remedied when appellant (petitioners herein) filed a petition for prohibition and injunction and was heard on oral argument after appellees (respondent officials) filed their answer." Respondent Court then quashed the Writ of Prohibition and set aside the order of restitution and payment of attorney's fees. Petitioner's plea for reconsideration having been denied, it is now before us seeking a reversal. The focal issue for determination is whether or not Respondent Mayor could summarily, without judicial process, order the demolition of petitioner's quonset building. Respondent justify the demolition in the exercise of police power and for reasons of health, safety and general welfare. It also relies on Ordinance No. 147 (CA Records, pp. 85-104) of the Municipality of Isabela. For its part petitioner consistently denies to the Mayor, such power, invoking provisions of the Local Government Code. Ordinance No. 147, enacted on 27 December 1977, and relied upon by respondents, is entitled "An Ordinance Establishing Comprehensive Zoning Regulations for the Municipality of Isabela . . ." It is not disputed that the quonset building, which is being used for the storage of copra, is located outside the zone for warehouses. It is referred to in Ordinance as a non-conforming structure, which should be relocated. And in the event that an immediate relocation of the building can not be accomplished, Section 16 of the Ordinance provides: A certificate of non-conformance for all non-conforming uses shall be applied for by the owner or agent of the property involved within twelve (12) months from the approval of this Ordinance, otherwise the nonconforming use may be condemned or removed at the owner's expense. Even granting that petitioner failed to apply for a Certificate of Non-conformance, the foregoing provision should not be interpreted as authorizing the summary removal of a non-conforming building by the municipal government. For if it does, it must be struck down for being in contravention of the requirements of due process, as originally held by the respondent Court. Moreover, the enforcement and administration of the provisions of the Ordinance resides with the Zoning Administrator (Article VII, Secs. 1 and 2, Ordinance No. 147). It is said official who may call upon the City Fiscal to institute the necessary legal proceedings to enforce the provisions of the Ordinance ( id., Sec. 2, Ibid.). And any person aggrieved by the decision of the Zoning Administrator regarding the enforcement of the Ordinance may appeal to the Board of Zoning Appeals ( id., Sec. 7, Ibid.). That a summary remedy can not be resorted to is further evident from the penal provisions of said Ordinance, reading: Any person who violates any of the provisions of this ordinance shall, upon conviction, be punished by a fine of not less than fifty pesos (P50.00) but not more than two hundred pesos (P200.00) or by imprisonment of not less than one (1) month but not exceeding six (6) months, or both, at the discretion of the Court . . . (ibid., Sec. 11). [Emphasis ours]. Violation of a municipal ordinance neither empowers the Municipal Mayor to avail of extra-judicial remedies. On the contrary, the Local Government Code imposes upon him the duty "to cause to be instituted judicial proceedings in connection with the violation of ordinances" (Local Government Code, Sec. 141 [2] [t]). Respondents can not seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity (Monteverde v. Generoso, 52 Phil. 123 [1982]). The storage of copra in the quonset building is a legitimate business. By its nature, it can not be said to be injurious to rights of property, of health or of comfort of the community. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. It is not per se a nuisance warranting its summary abatement without judicial intervention. The provincial governor, district engineer or district health officer is not authorized to destroy private property consisting of dams and fishponds summarily and without any judicial proceedings whatever under the pretense that such private property constitutes a nuisance. A dam or a fishery constructed in navigable rivers is not a nuisance per se. A dam or fishpond may be a nuisance per accidens where it endangers or impairs the health or depreciates property by causing water to become stagnant. (Monteverde v. Generoso, supra). While the Sangguniang Bayan may provide for the abatement of a nuisance (Local Government Code, Sec. 149 [ee]), it can not declare a particular thing as a nuisance per se and order its condemnation. The nuisance can only be so adjudged by judicial determination. [Municipal councils] do not have the power to find as a fact that a particular thing is a nuisance when such thing is not a nuisance per se nor can they authorize the extra judicial condemnation and destruction of that as a nuisance which, in its nature, situation or use is not such. These things must be determined in the ordinary courts of law. In the present case, . . . the ice factory of the plaintiff is not a nuisance per se. It is a legitimate industry . . . . If it be in fact a nuisance due to the manner of its operation, that question cannot be determined by a mere resolution of the board. The petitioner is entitled to a fair and impartial heating before a judicial tribunal. (Iloilo Cold Storage v. Municipal Council, 24 Phil. 47 [1913]). Petitioner was in lawful possession of the lot and quonset building by virtue of a permit from the Philippine Ports Authority (Port of Zamboanga) when demolition was effected. It was not squatting on public land. Its property was not of trifling value. It was entitled to an impartial hearing before a tribunal authorized to decide whether the quonset building did constitute a nuisance in law. There was no compelling necessity for precipitate action. It follows then that respondent public officials of the Municipality of Isabela, Basilan, transcended their authority in abating summarily petitioner's quonset building. They had deprived petitioner of its property without due process of law. The fact that petitioner filed a suit for prohibition and was subsequently heard thereon will not cure the defect, as opined by the Court of Appeals, the demolition having been a fait accompli prior to hearing and the authority to demolish without a judicial order being a prejudicial issue. For the precipitate demolition, therefore, petitioner should be entitled to just compensation, the amount of which is for the Trial Court to determine. We are not inclined to grant petitioner damages, however, as it simply ignored the demand to remove or relocate its quonset building. WHEREFORE, the judgment under review of respondent Court of Appeals, dated 13 June 1990, is SET ASIDE; its original Decision, promulgated on 25 January 1990, is REINSTATED; and this case is ordered REMANDED to the Regional Trial Court of Basilan, Branch 2, for the determination of the just compensation due petitioner for the demolition of its quonset building. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-24245 April 11, 1972 LEONOR FARRALES, assisted by her husband, EMILIO FARRALES, plaintiffs-appellants, vs. THE CITY MAYOR OF BAGUIO, THE CHIEF OF POLICE, THE MARKET SUPERINTENDENT AND THE CITY TREASURER, defendants-appellees. Ernesto C. Hidalgo and Pedro O. Trinidad for plaintiff-appellants. The City Attorney for defendants-appellees. MAKALINTAL, J.:p This appeal by the plaintiffs from the decision of the Court of First Instance of Baguio in its Civil Case No. 622 was taken to the Court of Appeals and subsequently certified by the latter to this Court for the reason that only questions of law are involved. The decision appealed from states the facts and conclusions arrived at by the court a quo, as follows: This is an action for damages. Plaintiff was the holder of a municipal license to sell liquor and sari-sari goods. When the temporary building where she had her stall was demolished in order that the city might construct a permanent building, Plaintiff was ordered to move her goods to another temporary place until the permanent building was completed. She did not like the location pointed out by city officials where she could install her temporary stall. Instead, taking the law into her own hands, Plaintiff built a temporary shack at one end of the Rice Section, Baguio City Market (see Exhibits 3, 4, and 6), without seeking prior permit or permission from any city official. When the police threatened to demolish this shack, which was built on the cement passageway at the end of the Rice Section building, Plaintiff came to this Court seeking an injunction. Before this Court would issue an injunction, a hearing was held where this Court refused to issue the same unless Plaintiff could show proper permit. Plaintiff could not do so, so the police demolished the shack, brought the materials and goods to the City Hall and subsequently delivered both materials and goods to Plaintiff. Plaintiff cited the police for contempt but this Court, in an order dated September 19, 1956, denied Plaintiff's petition. That order was final in character — not interlocutory — and no appeal having been made would operate as res judicata to his present suit which is based on the same act of demolition. To evade the effects of res judicata, Plaintiff amended her complaint so as to include as Defendants the policemen whom she claims did the demolishing. The only question to be determined by this Court is whether the demolition of the shack was in order or not. There is no doubt Plaintiff had not permit to build the shack and this shack was built in the passageway where people pass when going to the hangar market building. Plaintiff insists that the proper procedure should have been for either the City Engineer or the City Health Officer to commence legal proceedings for the abatement of this "nuisance". This Court believes that the police officers properly demolished the shack for it had been built in defiance of orders from City Hall officials. Plaintiff had been assigned a place where to install her shack — she did not like this and, following her own desires, built the shack in the middle of a passage. Should the police wait for the City Engineer or City Health Officer to act in order to clear the passageway of this illegal construction? This Court believes that they could clear the passageway on their own responsibility, just like they can push a car that is parked in the wrong place without waiting for court proceedings. In fact in the case of Verzosa v. City of Baguio, G.R. No. L-13546, Sept. 30, 1960, our Supreme Court permitted the removal of a building built under temporary permit on Session Road without court proceedings simply because the temporary permit had expired. In this present case, with greater reason — the removal of Plaintiff's building is justified. The complaint of Plaintiff is therefore, dismissed with costs against Plaintiff. The first error assigned by the appellant refers to the order of the trial court refusing to declare the defendants in default and allowing them to file their answer to the complaint after the expiration of the reglementary period for that purpose. Such action of the court was justified and indeed explained by it in an order dated September 29, 1956, denying the plaintiff's motion for reconsideration of the permission granted on August 24, 1956 to the defendants to file their answer. The Court said: The stenographic notes of that day show that Atty. Baclit appeared in this case on behalf of the Plaintiffs and when the issue of the sufficiency of Plaintiffs' complaint was raised by the City Attorney, and Atty. Baclit said he had no knowledge of the same, this Court suspended hearing to wait for Atty. Benjamin Rillera, attorney of record of Plaintiffs and who was the one who filed the Motion to Declare Defendant in Default. Subsequently that morning, Atty. Rillera came and manifested to this Court his willingness to withdraw his motion and, to allow Defendants to file their answer. This was the reason for the order of this Court dated August 24, 1956. Plaintiffs are bound by the actuations of their Counsel. The fact that he refused to file a motion for reconsideration and instead insisted in withdrawing as counsel for Plaintiffs would be no justification of revoking the order of August 24, 1956. The motion for reconsideration filed by Plaintiffs personally is, therefore, denied for lack of merit. The other errors assigned by the appellant have to do with the merits of the case. The appellant's contention is that the shack or temporary stall put up by her inside the premises of the Baguio City Market was not a nuisance or if it was a nuisance at all it was one per accidens and not per se and therefore could be abated only after the corresponding judicial proceeding. The uncontradicted evidence does not support the appellant's contention. In the first place she had no permit to put up the temporary stall in question in the precise place where she did so. In the second place, its location on the cement passageway at the end of the Rice Section building was such that it constituted an obstruction to the free movement of people. As the court a quo correctly observed, this fact is shown clearly on the photographs marked Exhibits 3, 4 and 6. Judging by these photographs it cannot even be said that what the appellant constructed was a temporary stall. It was nothing more than a lean-to, improvised with pieces of used scrap iron roofing sheets. It was obviously not a "building" within the meaning of the Charter of the City of Baguio (Art. V, Section 2557 [d] Adm. Code) relied upon by the appellant and under which the power "to cause buildings, dangerous to the public, to be made secure or torn down, is vested in the City Engineer, subject to the approval of the City Mayor. It is true that under Article 702 of the Civil Code "the District Officer shall determine whether or not abatement, without judicial proceedings, is the best remedy against public nuisance;" but in this case the failure to observe this provision is not in itself a ground for the award of damages in favor of the appellant and against the appellees. According to Article 707 of the same Code, a public official extrajudicially abating a nuisance shall be liable for damages in only two cases: (1) if he causes unnecessary injury, or (2) if an alleged nuisance is later declared by the courts to be not a real nuisance. Here no unnecessary injury was caused to the appellant, and not only was there no judicial declaration that the alleged nuisance was not really so but the trial court found that it was in fact a nuisance. Indeed it may be said that the abatement thereof was not summary, but through a judicial proceeding. The appellant, after having been warned by the city police of Baguio that the lean-to she had put up without a permit would be demolished, went to court and asked for an injunction. A hearing was then held and the court refused to issue the writ unless she showed the proper permit. The denial of her petition for injunction upon her failure to produce such a permit was in effect an authority for the police to carry out the act which was sought to be enjoined. And it was an authority which was later confirmed by the same court in its decision. Under the circumstances there is absolutely no ground to award damages in favor of the appellant. WHEREFORE, the judgment appealed from is affirmed, without pronouncement as to costs. Concepcion, C.J., Reyes, J.B.L., Zaldivar, Castro, Fernando, Teehankee, Barredo and Antonio, JJ., concur. Makasiar, J., concurs in the result. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-3422 June 13, 1952 HIDALGO ENTERPRISES, INC., petitioner, vs. GUILLERMO BALANDAN, ANSELMA ANILA and THE COURT OF APPEALS, respondents. Quisumbing, Sycip, Quisumbing and Salazar for petitioner. Antonio M. Moncado for respondents. BENGZON, J.: This is an appeal by certiorari, from a decision of the Court of Appeals requiring Hidalgo Enterprises, Inc. to pay Guillermo Balandan and his wife, damages in the sum of P2,000 for the death of their son Mario. It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an ice-plant factory in the City of San Pablo, Laguna, in whose premises were installed two tanks full of water, nine feet deep, for cooling purposes of its engine. While the factory compound was surrounded with fence, the tanks themselves were not provided with any kind of fence or top covers. The edges of the tanks were barely a foot high from the surface of the ground. Through the wide gate entrance, which is continually open, motor vehicles hauling ice and persons buying said commodity passed, and any one could easily enter the said factory, as he pleased. There was no guard assigned on the gate. At about noon of April 16, 1948, plaintiff's son, Mario Balandan, a boy barely 8 years old, while playing with and in company of other boys of his age entered the factory premises through the gate, to take a bath in one of said tanks; and while thus bathing, Mario sank to the bottom of the tank, only to be fished out later, already a cadaver, having been died of "asphyxia secondary to drowning." The Court of Appeals, and the Court of First Instance of Laguna, took the view that the petitioner maintained an attractive nuisance (the tanks), and neglected to adopt the necessary precautions to avoid accidents to persons entering its premises. It applied the doctrine of attractive nuisance, of American origin, recognized in this Jurisdiction in Taylor vs. Manila Electric 16 Phil., 8. The doctrine may be stated, in short, as follows: One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. ( See 65 C.J.S., p. 455.) The principle reason for the doctrine is that the condition or appliance in question although its danger is apparent to those of age, is so enticing or alluring to children of tender years as to induce them to approach, get on or use it, and this attractiveness is an implied invitation to such children (65 C.J.S., p. 458). Now, is a swimming pool or water tank an instrumentality or appliance likely to attract the little children in play? In other words is the body of water an attractive nuisance? The great majority of American decisions say no. The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location. There are numerous cases in which the attractive nuisance doctrine has not been held not to be applicable to ponds or reservoirs, pools of water, streams, canals, dams, ditches, culverts, drains, cesspools or sewer pools, . . . (65 C.J.S., p. 476 et seg. citing decisions of California, Georgia, Idaho, Illinois, Kansas, Iowa, Louisiana, Miss., Missouri, Montana, Oklahoma, Pennsylvania, Tennessee, Texas, Nebraska, Wisconsin.) In fairness to the Court of Appeals it should be stated that the above volume of Corpus Juris Secundum was published in 1950, whereas its decision was promulgated on September 30, 1949. The reason why a swimming pool or pond or reservoir of water is not considered an attractive nuisance was lucidly explained by the Indiana Appellate Court as follows: Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger children are early instructed so that they are sufficiently presumed to know the danger; and if the owner of private property creates an artificial pool on his own property, merely duplicating the work of nature without adding any new danger, . . . (he) is not liable because of having created an "attractive nuisance." Anderson vs. Reith-Riley Const. Co., N. E., 2nd, 184, 185; 112 Ind. App., 170. Therefore, as petitioner's tanks are not classified as attractive nuisance, the question whether the petitioner had taken reasonable precautions becomes immaterial. And the other issue submitted by petitioner — that the parents of the boy were guilty of contributory negligence precluding recovery, because they left for Manila on that unlucky day leaving their son under the care of no responsible individual — needs no further discussion. The appealed decision is reversed and the Hidalgo Enterprises, Inc. is absolved from liability. No costs. Feria, Padilla, Tuason, Montemayor, and Bautista Angelo, JJ., concur. Separate Opinions PABLO, J., disidente: La recurrente tiene dos estanques de agua, de nueve pies de profundidad, como anexos indispensables a su fabrica de hielo; estan constuidos dentro de un solar que esta cercado pero con una puerta de entrada siempre abierta en donde pasan libremente los coches que distribuyen hielo y las personas que lo compran de la fabrica; cualquiera puede entrar sin distincion alguna, no hay ningun guardia en la puerta que impida la entrada de cualquiera persona. A dichos dos entanques tiene libre acceso el publico. Es evidente que la recurrente debio haber cercado dichos estanques como medida ordinaria de precaucion para que los ninos de corta edad no pueden entrar, tanto mas cuanto que los bordes de esos estanques solo tienen un pie de altura la superficie del terreno. El cerco puesto en el perimento del solar, con puerta continuamente abierta, no es suficiente medida para impedir que los ninos puedan meterse en los entanques. Ese cerco con su puerta abierta es como un velo transparente con que se cubre una mujer semidesnuda en un teatro, pica la curiosidad y atrae la atencion del publico. Los niños son curiosos por naturaleza y los de ocho años no tienen perfecto conocimiento de las cosas. Alucinados por la natural atraccion de las aguas, se meteran en ellas con peligro de sus vidas, a menos que exista algo que les impida. Voto con la confirmacion de la decision apelada.
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