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Mr. and Mrs.

Ong vs Metropolitan Water District

104 Phil 397 Civil Law Torts and Damages Due Diligence as a Defense Last Clear Chance; when not
On July 5, 1952, Dominador Ong (14 years old) and his two brothers went to the swimming pool operated by
Metropolitan Water District (MWD). After paying the entrance fee, the three proceeded to the small pool.
The swimming pools of MWD are provided with a ring buoy, toy roof, towing line, oxygen resuscitator and a first aid
medicine kit. The bottom of the pools is painted with black colors so as to insure clear visibility. There is on display
in a conspicuous place within the area certain rules and regulations governing the use of the pools. MWD employs
six lifeguards who are all trained as they had taken a course for that purpose and were issued certificates of
proficiency. These lifeguards work on schedule prepared by their chief and arranged in such a way as to have two
guards at a time on duty to look after the safety of the bathers. There is a male nurse and a sanitary inspector with
a clinic provided with oxygen resuscitator. And there are security guards who are available always in case of
Later, Dominador told his brothers that hell just be going to the locker room to drink a bottle of Coke. No one saw
him returned. Later, the elder Ong noticed someone at the bottom of the big pool and notified the lifeguard in
attendant (Manuel Abao), who immediately dove into the water. The body was later identified as Dominadors. He
was attempted to be revived multiple times but of no avail.
The parents of Ong sued MWD averring that MWD was negligent in selecting its employees. During trial, the elder
brother of Ong and one other testified that Abao was reading a magazine and was chatting with a security guard
when the incident happened and that he was called a third time before he responded. Plaintiff further alleged that
even assuming that there was no negligence on the part of MWD, it is still liable under the doctrine of Last Clear
Chance for having the last opportunity to save the Dominador, its employees failed to do so.
ISSUE: Whether or not MWD is liable for the death of Dominador Ong.
HELD: No. As established by the facts, MWD was not negligent in selecting its employees as all of them were duly
certified. MWD was not negligent in managing the pools as there were proper safety measures and
precautions/regulations that were placed all over the pools. Hence, due diligence is appreciated as a complete and
proper defense in this case. Further, the testimony in court by the elder Ong and the other witness was belied by
the statements they have given to the investigators when they said that the lifeguard immediately dove into the
water when he was called about the boy at the bottom of the pool.
The doctrine of Last Clear Chance is of no application here. It was not established as to how Dominador was
able to go to the big pool. He went to the locker and thereafter no one saw him returned not until his body was
retrieved from the bottom of the big pool. The last clear chance doctrine can never apply where the party charged
is required to act instantaneously (how can the lifeguard act instantaneously in dissuading Dominador from going
to the big pool if he did not see him go there), and if the injury cannot be avoided by the application of all means at
hand after the peril is or should have been discovered; at least in cases in which any previous negligence of the
party charged cannot be said to have contributed to the injury.

Jose Cangco vs Manila Railroad Co.

30 Phil 768 Civil Law Torts and Damages Distinction of Liability of Employers Under Article 2180 and Their
Liability for Breach of Contract
On January 20, 1915, Cangco was riding the train of Manila Railroad Co (MRC). He was an employee of the latter
and he was given a pass so that he could ride the train for free. When he was nearing his destination at about
7pm, he arose from his seat even though the train was not at full stop. When he was about to alight from the train
(which was still slightly moving) he accidentally stepped on a sack of watermelons which he failed to notice due to
the fact that it was dim. This caused him to lose his balance at the door and he fell and his arm was crushed by the
train and he suffered other serious injuries. He was dragged a few meters more as the train slowed down.
It was established that the employees of MRC were negligent in piling the sacks of watermelons. MRC raised as a
defense the fact that Cangco was also negligent as he failed to exercise diligence in alighting from the train as he
did not wait for it to stop.
ISSUE: Whether or not Manila Railroad Co is liable for damages.
HELD: Yes. Alighting from a moving train while it is slowing down is a common practice and a lot of people are
doing so every day without suffering injury. Cangco has the vigor and agility of young manhood, and it was by no
means so risky for him to get off while the train was yet moving as the same act would have been in an aged or
feeble person. He was also ignorant of the fact that sacks of watermelons were there as there were no appropriate
warnings and the place was dimly lit.
The Court also elucidated on the distinction between the liability of employers under Article 2180 and their liability
for breach of contract [of carriage]:

NOTES: But, if the master has not been guilty of any negligence whatever in the selection and direction of the
servant, he is not liable for the acts of the latter, whatever done within the scope of his employment or not, if the
damage done by the servant does not amount to a breach of the contract between the master and the person

The liability arising from extra-contractual culpa is always based upon a voluntary act or omission which, without
willful intent, but by mere negligence or inattention, has caused damage to another.
These two fields, figuratively speaking, concentric; that is to say, the mere fact that a person is bound to another by
contract does not relieve him from extra-contractual liability to such person. When such a contractual relation
exists the obligor may break the contract under such conditions that the same act which constitutes the source of
an extra-contractual obligation had no contract existed between the parties.
Manresa: Whether negligence occurs an incident in the course of the performance of a contractual undertaking or
in itself the source of an extra-contractual undertaking obligation, its essential characteristics are identical.
Vinculum Juris: (def) It means an obligation of law, or the right of the obligee to enforce a civil matter in a court
of law.

[G.R. No. 152040 March 31, 2006]
Erlinda V. Valdellon is the owner of a two-door commercial apartment located at No. 31 Kamias Road, Quezon
City. The Marikina Auto Line Transport Corporation (MALTC) is the owner-operator of a passenger bus with Plate
Number NCV-849. Suelto, its employee, was assigned as the regular driver of the bus.
At around 2:00 p.m. on October 3, 1992, Suelto was driving the aforementioned passenger bus along Kamias
Road, Kamuning, Quezon City, going towards Epifanio de los Santos Avenue (EDSA). The bus suddenly swerved
to the right and struck the terrace of the commercial apartment owned by Valdellon located along Kamuning Road.
Valdellon demanded payment of P148,440.00 to cover the cost of the damage to the terrace. The bus company
and Suelto offered a P30,000.00 settlement which Valdellon refused.
Valdellon filed a criminal complaint for reckless imprudence resulting in damage to property against Suelto.
Valdellon also filed a separate civil complaint against Suelto and the bus company for damages. Suelto maintained
that, in an emergency case, he was not, in law, negligent. Both the trial court and the CA ruled in against herein
Whether or not the sudden emergency rule applies in the case at bar.
It was the burden of petitioners herein to prove petitioner Sueltos defense that he acted on an emergency, that is,
he had to swerve the bus to the right to avoid colliding with a passenger jeep coming from EDSA that had
overtaken another vehicle and intruded into the lane of the bus. The sudden emergency rule was enunciated by
this Court in Gan v. Court of Appeals,23 thus:
[O]ne who suddenly finds himself in a place of danger, and is required to act without time to consider the best
means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to adopt what
subsequently and upon reflection may appear to have been a better method unless the emergency in which he
finds himself is brought about by his own negligence.
Under Section 37 of Republic Act No. 4136, as amended, otherwise known as the Land Transportation and Traffic
Code, motorists are mandated to drive and operate vehicles on the right side of the road or highway:
SEC. 37. Driving on right side of highway. Unless a different course of action is required in the interest of the
safety and the security of life, person or property, or because of unreasonable difficulty of operation in compliance
herewith, every person operating a motor vehicle or an animal-drawn vehicle on a highway shall pass to the right
when meeting persons or vehicles coming toward him, and to the left when overtaking persons or vehicles going
the same direction, and when turning to the left in going from one highway to another, every vehicle shall be
conducted to the right of the center of the intersection of the highway.
Section 35 of the law provides, thus:
Sec. 35. Restriction as to speed.(a) Any person driving a motor vehicle on a highway shall drive the same at a
careful and prudent speed, not greater nor less than is reasonable and proper, having due regard for the traffic, the
width of the highway, and of any other condition then and there existing; and no person shall drive any motor
vehicle upon a highway at such a speed as to endanger the life, limb and property of any person, nor at a speed
greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead.
In relation thereto, Article 2185 of the New Civil Code provides that "unless there is proof to the contrary, it is
presumed that a person driving a motor vehicle has been negligent, if at the time of mishap, he was violating any
traffic regulation." By his own admission, petitioner Suelto violated the Land Transportation and Traffic Code when
he suddenly swerved the bus to the right, thereby causing damage to the property of private respondent.
However, the trial court correctly rejected petitioner Sueltos defense, in light of his contradictory testimony vis--vis
his Counter-Affidavit submitted during the preliminary investigation:
It is clear from the photographs submitted by the prosecution (Exhs. C, D, G, H & I) that the commercial apartment
of Dr. Valdellon sustained heavy damage caused by the bus being driven by Suelto. "It seems highly improbable

that the said damages were not caused by a strong impact. And, it is quite reasonable to conclude that, at the time
of the impact, the bus was traveling at a high speed when Suelto tried to avoid the passenger jeepney." Such a
conclusion finds support in the decision of the Supreme Court in People vs. Ison, 173 SCRA 118, where the Court
stated that "physical evidence is of the highest order. It speaks more eloquently than a hundred witnesses." The
pictures submitted do not lie, having been taken immediately after the incident. The damages could not have been
caused except by a speeding bus. Had the accused not been speeding, he could have easily reduced his speed
and come to a full stop when he noticed the jeep. Were he more prudent in driving, he could have avoided the
incident or even if he could not avoid the incident, the damages would have been less severe.
In addition to this, the accused has made conflicting statements in his counter-affidavit and his testimony in court.
In the former, he stated that the reason why he swerved to the right was because he wanted to avoid the
passenger jeepney in front of him that made a sudden stop. But, in his testimony in court, he said that it was to
avoid a passenger jeepney coming from EDSA that was overtaking by occupying his lane. Such glaring
inconsistencies on material points render the testimony of the witness doubtful and shatter his credibility.
Furthermore, the variance between testimony and prior statements renders the witness unreliable. Such
inconsistency results in the loss in the credibility of the witness and his testimony as to his prudence and diligence.
As already maintained and concluded, the severe damages sustained could not have resulted had the accused
acted as a reasonable and prudent man would. The accused was not diligent as he claims to be. What is more
probable is that the accused had to swerve to the right and hit the commercial apartment of the plaintiff because he
could not make a full stop as he was driving too fast in a usually crowded street.
Moreover, if the claim of petitioners were true, they should have filed a third-party complaint against the driver of
the offending passenger jeepney and the owner/operator thereof.
Petitioner Sueltos reliance on the sudden emergency rule to escape conviction for the crime charged and his civil
liabilities based thereon is, thus, futile.

Spouses Teodoro and Nanette Perea vs Spouses Nicolas and Teresita Zarate
Civil Law Common Carrier Private School Transport are Common Carriers
Torts and Damages Heirs of a high school student may be awarded damages for loss income
In June 1996, Nicolas and Teresita Zarate contracted Teodoro and Nanette Perea to transport their (Zarates) son,
Aaron Zarate, to and from school. The Pereas were owners of a van being used for private school transport.
At about 6:45am of August 22, 1996, the driver of the said private van, Clemente Alfaro, while the children were on
board including Aaron, decided to take a short cut in order to avoid traffic. The usual short cut was a railroad
crossing of the Philippine National Railway (PNR).
Alfaro saw that the barandilla (the pole used to block vehicles crossing the railway) was up which means it was
okay to cross. He then tried to overtake a bus. However, there was in fact an oncoming train but Alfaro no longer
saw the train as his view was already blocked by the bus he was trying to overtake. The bus was able to cross
unscathed but the vans rear end was hit. During the collision, Aaron, was thrown off the van. His body hit the
railroad tracks and his head was severed. He was only 15 years old.
It turns out that Alfaro was not able to hear the train honking from 50 meters away before the collision because the
vans stereo was playing loudly.
The Zarates sued PNR and the Pereas (Alfaro became at-large). Their cause of action against PNR was based
on quasi-delict. Their cause of action against the Pereas was based on breach of contract of common carriage.
In their defense, the Pereas invoked that as private carriers they were not negligent in selecting Alfaro as their
driver as they made sure that he had a drivers license and that he was not involved in any accident prior to his
being hired. In short, they observed the diligence of a good father in selecting their employee.
PNR also disclaimed liability as they insist that the railroad crossing they placed there was not meant for railroad
crossing (really, thats their defense!).
The RTC ruled in favor of the Zarates. The Court of Appeals affirmed the RTC. In the decision of the RTC and the
CA, they awarded damages in favor of the Zarates for the loss of earning capacity of their dead son.
The Pereas appealed. They argued that the award was improper as Aaron was merely a high school student,
hence, the award of such damages was merely speculative. They cited the case of People vs Teehankee where
the Supreme Court did not award damages for the loss of earning capacity despite the fact that the victim there
was enrolled in a pilot school.
ISSUES: Whether or not the defense of due diligence of a good father by the Pereas is untenable. Whether or not
the award of damages for loss of income is proper.
HELD: Yes, in both issues.
Defense of Due Diligence of a Good Father
This defense is not tenable in this case. The Pereas are common carriers. They are not merely private carriers.
(Prior to this case, the status of private transport for school services or school buses is not well settled as to
whether or not they are private or common carriers but they were generally regarded as private carriers). Private
transport for schools are common carriers. The Pereas, as the operators of a school bus service were: (a)
engaged in transporting passengers generally as a business, not just as a casual occupation; (b) undertaking to
carry passengers over established roads by the method by which the business was conducted; and (c)
transporting students for a fee. Despite catering to a limited clientle, the Pereas operated as a common carrier
because they held themselves out as a ready transportation indiscriminately to the students of a particular school
living within or near where they operated the service and for a fee.
Being a common carrier, what is required of the Pereas is not mere diligence of a good father. What is specifically
required from them by law is extraordinary diligence a fact which they failed to prove in court. Verily, their
obligation as common carriers did not cease upon their exercise of diligently choosing Alfaro as their employee.

(It is recommended that you read the full text, the Supreme Court made an elaborate and extensive definition of
common and private carriers as well as their distinctions.)
Award of Damages for Aarons loss of earning capacity despite he being a high school student at the time of his
The award is proper. Aaron was enrolled in a reputable school (Don Bosco). He was of normal health and was an
able-bodied person. Further, the basis of the computation of his earning capacity was not on what he would have
become. It was based on the current minimum wage. The minimum wage was validly used because with his
circumstances at the time of his death, it is most certain that had he lived, he would at least be a minimum wage
earner by the time he starts working. This is not being speculative at all.
The Teehankee case was different because in that case, the reason why no damages were awarded for loss of
earning capacity was that the defendants there were already assuming that the victim would indeed become a
pilot hence, that made the assumption speculative. But in the case of Aaron, there was no speculation as to what
he might be but whatever hell become, it is certain that he will at the least be earning minimum wage.

G.R. No. 185891, June 26, 2013

TOPIC: Diligence of a good father of a family
Wilfredo made a travel reservation with Sampaguita Travel for his family s trip to
Adelaide, Australia. Upon confirmation of their flight schedule, Wilfredo paid
for the airfare and was issued 4 Cathay Pacific roundtrip airplane tickets for
Manila-Hong Kong-Adelaide-Hong Kong-Manila.
One week before they were scheduled to fly back home, Wilfredo re-confirmed
his family s return flight with the Cathay Pacific office in Adelaide. They were
advised that the reservation was still okay as scheduled .
On the day of their scheduled departure from Adelaide, Wilfredo and his family
arrived at the airport on time. When the airport check-in opened, Wilfredo was in
formed by a staff from Cathay Pacific that Wilfredo s family did not have
confirmed reservations, and only Sixta s flight booking was confirmed.
Although, they were allowed to board the flight to Hong Kong, not all of them
were allowed to board the flight to Manila as it was fully booked. Only Wilfredo s
mother-in-law, Sixta, was allowed to proceed to Manila from Hong Kong.
On the following day, the Reyeses were finally allowed to board the next flight
bound for Manila. Upon arriving in the Philippines, Wilfredo went Sampaguita
Travel to report the incident. He was informed by Sampaguita Travel that it was
actually Cathay Pacific which cancelled their bookings.
Whether Cathay Pacific breached its contract of carriage with the Wilfredo s
family? Yes
Whether Sampaguita breached its contract of services with Wilfredo s family?
Cathay Pacific breached its contract of carriage with the Reyeses when it
disallowed them to board the plane in Hong Kong going to Manila on the date
reflected on their tickets. Thus, Cathay Pacific opened itself to claims for
compensatory, actual, moral and exemplary damages, attorney s fees and costs of
suit. In contrast, the contractual relation between Sampaguita Travel and
respondents is a contract for services. The object of the contract is arranging and
facilitating the latter s booking and ticketing. It was even Sampaguita Travel
which issued the tickets. Since the contract between the parties is an ordinary one
for services, the standard of care required of respondent is that of a good father of
a family under Article 1173 of the Civil Code. This connotes reasonable care
consistent with that which an ordinarily prudent person would have observed
when confronted with a similar situation. The test to determine whether
negligence attended the performance of an obligation is: did the defendant in

doing the alleged negligent act use that reasonable care and caution which an
ordinarily prudent person would have used in the same situation? If not, then he is
guilty of negligence. There was indeed failure on the part of Sampaguita Travel to
exercise due diligence in performing its obligations under the contract of services.
It was established by Cathay Pacific, through the generation of the PNRs, that
Sampaguita Travel failed to input the correct ticket number for Wilfredo s ticket.
Cathay Pacific even asserted that Sampaguita Travel made two fictitious bookings
for Juanita and Michael.
The negligence of Sampaguita Travel renders it also liable for damages.

Africa vs. Caltex, 16 SCRA 448

Facts: In the afternoon of March 18, 1948, a fire broke out at the Caltex service station at the
corner of Antipolo St. and Rizal Avenue, Manila. It started while gasoline was being hosed
from a tank truck into the underground storage, right at the opening of the receiving tank
where the nozzle of the hose was inserted. The fire spread to and burned several houses. The
owners, among them petitioner spouses Africa and heirs of Ong, sued respondents Caltex
Phil., Inc., the alleged owner of the station, and Mateo Boquiren, the agent in charge of its
operation, for damages. The CFI and CA found that the petitioners failed to prove negligence
of the respondents, and that there was due care in the premises and with respect to the
supervision of their employees.
Issue: Whether or not, without proof as to the cause and origin of the fire, the doctrine of res
ipsa loquitur should apply so as to presume negligence on the part of the respondents.
Held: Yes. Res ipsa loquitur literally means the thing or transaction speaks for itself. For the
doctrine of res ipsa loquitur to apply, the following requisites should be present: (a) the
accident is of a kind which ordinarily does not occur in the absence of someones negligence;
(b) it is caused by an instrumentality within the exclusive control of the defendant or
defendants; and (c) the possibility of contributing conduct which would make the plaintiff
responsible is eliminated. In the case at bar, the gasoline station, with all its appliances,
equipment and employees, was under the control of respondents. A fire occurred therein
and spread to and burned the neighboring houses. The persons who knew or could have
known how the fire started were respondents and their employees, but they gave no
explanation thereof whatsoever. It is a fair and reasonable inference that the incident
happened because of want of care. The negligence of the employees was the proximate cause
of the fire, which in the ordinary course of things does not happen. Therefore, the petitioners
are entitled to the award for damages.

RODRIGUEZ et al vs.CA et al
G.R. No. 121964
June 17, 1997
FACTS: A a fire broke out which razed two apartment buildings, owned by plaintiffsappellants Rodriguezes and partially destroying a commercial building. They filed a case for
damages against defendants-appellees Vilorias and Young. The complaint alleged that by
reason of the gross negligence and want of care of the construction workers and employees of
the defendants-appellees, the bunkhouse or workers quarters in the construction site caught
fire spreading rapidly, burning the adjacent buildings owned by plaintiffs-appellants.
Defendant-appellee Young, the building contractor, contended that he can not be held
responsible even if there was negligence on the part of the employees for he had exercised the
diligence of a good father of a family in the selection and supervision of his workers. As
counterclaim, defendant-appellee Young sought for moral damages, exemplary damages and
attorneys fees.
The Vilorias also alleged that plaintiffs-appellants had no cause of action against them. The
fire court not have been caused by gross negligence of their workers for they did not have any
worker in the construction of their building. The said construction was being undertaken by
the independent contractor, Young, who hired and supervised his own workers. As
counterclaim, they prayed for moral damages, exemplary damages and attorneys fees.
After trial and reception of evidence, the court a quo resolved that the fire was not caused by
an instrumentality within the exclusive control of the defendants-appellants. The decision
stated that plaintiffs-appellants failed to establish that the fire was the result of defendantsappellees or their workers negligence.
The CA affirmed the trial courts decision but the award of damages in favor of defendantsappellees including the award of attorneys fees are DELETED and SET ASIDE.


APPLICABLE TO THE CASE AT BAR, therefore making the Fire Investigation
Report inadmissible in evidence

HELD: the instant petition is DENIED and the challenged decision of CA is AFFIRMED in
1. NO, the rule is applicable; the Report admissible

Section 44 of Rule 130, which reads as follows:

Sec. 44. Entries in official records. Entries in official records made in the performance
of his duty by a public officer of the Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts therein stated.
Petitioners assert that the Fire Investigation Report by an official of the Cebu City Fire
Station should have been admitted in evidence as an exception to the hearsay rule [as stated
in #2 above].] The trial and appellate courts rejected this applying Africa v. Caltex (Phil.)
Inc., wherein this Court laid down the three requisites for admissibility under the aforesaid
section, viz.:
(1) that the entry was made by a police officer, or by another person especially enjoined by
law to do so;
(2) that it was made by the police officer in the performance of his duties, or by such other
person in the performance of a duty especially enjoined by law; and
(3) that the public officer or other person had sufficient knowledge of the facts by him stated,
which must have been acquired by him personally or through official information.
Elaborating on the third requisite, this Court further stated that for the statements acquired
by the public officer under the third requisite to qualify as official information, it is
necessary that the persons who gave the statements not only must have personal knowledge
of the facts stated but must have the duty to give such statements for record.
Some confusion surrounds the issue of admissibility of the Fire Investigation Report. The
record discloses that the officer who signed the report, Fire Major Eduardo P. Enriquez, was
subpoenaed at the request of and testified in open court for petitioners.Private respondents
objected said report, for being hearsay and incompetent evidence. The trial court then
denied their admission for being hearsay.
In light of the purposes for which the exhibits in question were offered, the trial court erred
in rejecting all of them as hearsay. Since Major Enriquez himself took the witness stand and
was available for cross-examination, the portions of the report which were of his personal
knowledge or which consisted of his perceptions and conclusions were not hearsay. The rest
of the report, such as the summary of the statements of the parties based on their sworn
statements (which were annexed to the Report) as well as the latter, having been included in
the first purpose of the offer, may then be considered as independently relevant

statements which were gathered in the course of the investigation and may thus be
admitted as such, but not necessarily to prove the truth thereof. It has been said that:
Where, regardless of the truth or falsity of a statement, the fact that it has been made is
relevant, the hearsay rule does not apply, but the statement may be shown. Evidence as to the
making of such statement is not secondary but primary, for the statement itself may
constitute a fact in issue, or be circumstantially relevant as to the existence of such a fact.
When Major Enriquez took the witness stand, testified for petitioners on his Report and
made himself available for cross-examination by the adverse party, the Report, insofar as it
proved that certain utterances were made (but not their truth), was effectively removed from
the ambit of the aforementioned Section 44 of Rule 130. Properly understood, this section
does away with the testimony in open court of the officer who made the official record,
considers the matter as an exception to the hearsay rule and makes the entries in said official
record admissible in evidence as prima facie evidence of the facts therein stated. The
underlying reasons for this exceptionary rule are necessity and trustworthiness, as explained
in Antillon v. Barcelon. 29
The litigation is unlimited in which testimony by officials is daily needed; the occasions in
which the officials would be summoned from his ordinary duties to declare as a witness are
numberless. The public officers are few in whose daily work something is not done in which
testimony is not needed from official sources. Were there no exception for official
statements, hosts of officials would be found devoting the greater part of their time to
attending as witnesses in court or delivering their deposition before an officer. The work of
administration of government and the interest of the public having business with officials
would alike suffer in consequence. For these reasons, and for many others, a certain verity is
accorded such documents, which is not extended to private documents. (3 Wigmore on
Evidence, sec. 1631).
The law reposes a particular confidence in public officers that it presumes they will discharge
their several trusts with accuracy and fidelity; and, therefore, whatever acts they do in
discharge of their duty may be given in evidence and shall be taken to be true under such a
degree of caution as the nature and circumstances of each case may appear to require.
It would have been an entirely different matter if Major Enriquez was not presented to testify
on his report. In that case the applicability of Section 44 of Rule 130 would have been ripe for
determination, and this Court would have agreed with the CA that said report was
inadmissible since the aforementioned third requisite was not satisfied. The statements given

by the sources of information of Major Enriquez failed to qualify as official information,

there being no showing that, at the very least, they were under a duty to give the statements
for record.
What appears to us to be the underlying purpose of petitioners in soliciting affirmance of
their thesis that the Report of Major Enriquez should be admitted as an exception to the
hearsay rule, is to shift the burden of evidence to private respondents under the doctrine
of res ipsa loquitur in negligence cases. They claim, as stated in their offer of Exhibits,
that the fire started at the generator. . . within the construction site. This quotation is based
on the penultimate paragraph of page 4 of the Report of Major Enriquez and is obviously
misleading as there is nothing in said paragraph that unequivocally asserts that the generator
was located within the construction site. The paragraph reads:
After analyzing the evidences [sic] and the circumstances underlying the situation, one can
easily came [sic] to the conclusion that the fire started at the generator and extended to the
bunkhouse and spread among the combustible stored materials within the construction site.
Among the combustible materials were the plastic (PVC) pipes and plywoods [sic].
Clearly, the phrase within the construction site could only refer to the immediately
preceding term combustible stored materials.
The trial court itself concluded that the fire could not have started at the generator and that
the bunkhouse was not burned, thus:
It then declared that the fire was not caused by an instrumentality within the exclusive
control of defendants, which is one of the requisites for the application of the doctrine
ofres ipsa loquitur in the law of negligence. It may further be emphasized that this
doctrine is not intended to and does not dispense with the requirement of proof of culpable
negligence on the party charged. It merely determines and regulates what shall be prima
facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty
of due care. The doctrine can be invoked when and only when, under the circumstances
involved, direct evidence is absent or not readily available.
To summarize, the Fire investigation Report was not used as evidence against respondents
not because it is considered hearsay but because it was inaccurately relied upon and used by
the petitioners.
NOTES: Additional issues


NO; Under the first assigned error petitioners want us to give full credit to the testimony of
Noel Villarin, their principal witness. The trial court, however, refused to believe Villarin, not
only because he had an ulterior motive to testify against private respondent Young (his tools
were burned, and Young neither had replenished those tools nor had visited him in the
hospital) but also on the impossibility of his statements [he said he saw Paner pour gasoline
to the generator (which caused the fire) through a hole in the wall which is located high
above him, when the generator was under the floor of the bunkhouse he was in and it was
noted that said bunkhouse is intact and did not burn] as rebuffed by the defendants witness.
One of the highly revered dicta in our jurisprudence is that this Court will not interfere with
the judgment of the trial court in passing on the credibility of opposing witnesses unless
there appears in the record some facts or circumstances of weight and influence which have
been overlooked, which, if considered, could affect the result of the case. The trial judge is in
a better position to decide the question of credibility since he personally heard the witnesses
and observed their deportment and manner of testifying. Petitioners have offered no
convincing arguments to accommodate their case within the exception; they did not even
dare to refute the above observations and findings of the trial court.

FGU Insurance Corporation vs. G.P.

Sarmiento Trucking Corporation
and Lambert Eroles
G.P. Sarmiento Trucking Corporation (GPS) undertook to deliver on June 18, 1994, 30 units of
Condura S.D. white refrigerators aboard its Isuzu truck driven by Lambert Eroles, to the Central
Luzon Appliances in Dagupan City. While traversing the North Diversion Road along McArthur
highway in Barangay Anupol, Bamban, Tarlac, it collided with an unidentified truck, causing it to fall
into a deep canal, resulting in damage to the cargoes.

FGU, an insurer of the shipment, paid the value of the covered cargoes (P204,450.00) to Concepcion
Industries, Inc.,. Being subrogee of CIIs rights & interests, FGU, in turn, sought reimbursement from
GPS. Since GPS failed to heed the claim, FGU filed a complaint for damages & breach of contract of
carriage against GPS and Eroles with the RTC. In its answer, respondents asserted that GPS was only
the exclusive hauler of CII since 1988, and it was not so engaged in business as a common carrier.
Respondents further claimed that the cause of damage was purely accidental.

GPS filed a motion to dismiss the complaint by way of demurrer to evidence on the ground that
petitioner had failed to prove that it was a common carrier.

The RTC granted the motion to dismiss on April 30, 1996. It subsequently dismissed the complaint
holding that GPS was not a common carrier defined under the law & existing jurisprudence. The
subsequent motion for reconsideration having been denied, FGU interposed an appeal to the CA. The
CA rejected the FGUs appeal & ruled in favor of GPS. It also denied petitioners motion for

1. WON GPS may be considered a common carrier as defined under the law & existing jurisprudence.

2. WON GPS, either as a common carrier or a private carrier, may be presumed to have been
negligent when the goods it undertook to transport safely were subsequently damaged while in its
protective custody & possession.

3. Whether the doctrine of Res ipsa loquitur is applicable in the instant case.
1. The SC finds the conclusion of the RTC and the CA to be amply justified. GPS, being an exclusive
contractor & hauler of Concepcion Industries, Inc., rendering/offering its services to no other
individual or entity, cannot be considered a common carrier. Common carriers are persons,
corporations, firms or associations engaged in the business of carrying or transporting passengers or
goods or both, by land, water, or air, for hire or compensation, offering their services to the public,

whether to the public in general or to a limited clientele in particular, but never on an exclusive
basis. The true test of a common carrier is the carriage of passengers/goods, providing space for
those who opt to avail themselves of its transportation service for a fee. Given accepted standards,
GPS scarcely falls within the term common carrier.

2. GPS cannot escape from liability. In culpa contractual, the mere proof of the existence of the
contract & the failure of its compliance justify, prima facie, a corresponding right of relief. The law
will not permit a party to be set free from liability for any kind of misperformance of the contractual
undertaking or a contravention of the tenor thereof. A breach upon the contract confers upon the
injured party a valid cause for recovering that which may have been lost/suffered. The remedy
serves to preserve the interests of the promisee that may include his:

1. Expectation interest interest in having the benefit of his bargain by being put in as good a
position as he would have been in had the contract been performed;

2. Reliance interest interest in being reimbursed for loss caused by reliance on the contract by
being put in as good a position as he would have been in had the contract not been made;

3. Restitution interest interest in having restored to him any benefit that he has conferred on the
other party.

Agreements can accomplish little unless they are made the basis for action. The effect of every
infraction is to create a new duty, or to make recompense to the one who has been injured by the
failure of another to observe his contractual obligation unless he can show extenuating
circumstances, like proof of his exercise of due diligence (normally that of the diligence of a good
father of a family or, exceptionally by stipulation or by law such as in the case of common carriers,
that of extraordinary diligence) or of the attendance of fortuitous event, to excuse him from his
ensuing liability.

A default on, or failure of compliance with, the obligation gives rise to a presumption of lack of care
& corresponding liability on the part of the contractual obligor the burden being on him to establish
otherwise. GPS has failed to do so.

Eroles, on the other hand, may not be ordered to pay petitioner without concrete proof of his
negligence/fault. The driver, not being a party to the contract of carriage between petitioners
principal and defendant, may not be held liable under the agreement. A contract can only bind the
parties who have entered into it or their successors who have assumed their personality/juridical
position. Consonantly with the axiom res inter alios acta aliis neque nocet prodest, such contract can
neither favor nor prejudice a third person. Petitioners civil action against the driver can only be
based on culpa aquiliana, which would require the claimant for damages to prove the defendants

3. Res ipsa loquitur holds a defendant liable where the thing which caused the injury complained of
is shown to be under the latters management and the accident is such that, in the ordinary course
of things, cannot be expected to happen if those who have its management/control use proper care.
In the absence of the defendants explanation, it affords reasonable evidence that the accident
arose from want of care. It is not a rule of substantive law and does not create an independent
ground of liability. Instead, it is regarded as a mode of proof, or a mere procedural convenience since
it furnishes a substitute for, and relieves the plaintiff of, the burden of producing specific proof of
negligence. The maxim simply places the burden of going forward with the proof on the defendant.
However, resort to the doctrine may only be allowed when:

(a) the event is of a kind which does not ordinarily occur in the absence of negligence;

(b) other responsible causes are sufficiently eliminated by the evidence (includes the conduct of the
plaintiff and third persons); and

(c) the indicated negligence is within the scope of the defendants duty to the plaintiff.

Thus, it is not applicable when an unexplained accident may be attributable to one of several
causes, for some of which the defendant could not be responsible.

Res ipsa loquitur generally finds relevance whether or not a contractual relationship exists between
the plaintiff and the defendant, for the inference of negligence arises from the circumstances and
nature of the occurrence and not from the nature of the relation of the parties. Nevertheless,for the
doctrine to apply, the requirement that responsible causes (other than those due to defendants
conduct) must first be eliminated should be understood as being confined only to cases of pure (noncontractual) tort since obviously the presumption of negligence in culpa contractual immediately
attaches by a failure of the covenant or its tenor.

On the other hand, while the truck driver, whose civil liability is predicated on culpa acquiliana, can
be said to have been in control & management of the vehicle, it is not equally shown that the
accident has been exclusively due to his negligence. If it were so, the negligence could allow res ipsa
loquitur to properly work against him. However, clearly this is not the case.


G.R. No. 78860
May 28, 1990
FACTS: Cayas was the registered owner of a Mazda bus which was insured with petitioner
PERLA COMPANIA DE SEGUROS, INC (PCSI). The bus figured in an accident in Cavite,
injuring several of its passengers. One of them, Perea, sued Cayas for damages in the CFI,
while three others agreed to a settlement of P4,000.00 each with Cayas.
After trial, the court rendered a decision in favor of Perea, Cayas ordered to compensate the
latter with damages. Cayas filed a complaint with the CFI, seeking reimbursement from PCSI
for the amounts she paid to ALL victims, alleging that the latter refused to make such
reimbursement notwithstanding the fact that her claim was within its contractual liability
under the insurance policy.
The decision of the CA affirmed in toto the decision of the RTC of Cavite, the dispositive
portion of which states:
IN VIEW OF THE FOREGOING, judgment is hereby rendered ordering defendant PCSI to
pay plaintiff Cayas the sum of P50,000.00 under its maximum liability as provided for in the
insurance policy;

In this petition for review on certiorari, petitioner seeks to limit its liability only to the
payment made by private respondent to Perea and only up to the amount of P12,000.00. It
altogether denies liability for the payments made by private respondents to the other 3
injured passengers totaling P12,000.00.
ISSUE: how much should PCSI pay?
HELD: The decision of the CA is modified, petitioner only to pay Cayas P12,000,000.00
The insurance policy provides:

5. No admission, offer, promise or payment shall be made by or on behalf of the insured

without the written consent of the Company
It being specifically required that petitioners written consent be first secured before any
payment in settlement of any claim could be made, private respondent is precluded from
seeking reimbursement of the payments made to the other 3 victims in view of her failure to
comply with the condition contained in the insurance policy.

Also, the insurance policy involved explicitly limits petitioners liability to P12,000.00 per
person and to P50,000.00 per accident

Clearly, the fundamental principle that contracts are respected as the law between the
contracting parties finds application in the present case. Thus, it was error on the part of the
trial and appellate courts to have disregarded the stipulations of the parties and to have
substituted their own interpretation of the insurance policy.
We observe that although Cayas was able to prove a total loss of only P44,000.00, petitioner
was made liable for the amount of P50,000.00, the maximum liability per accident stipulated
in the policy. This is patent error. An insurance indemnity, being merely an assistance or
restitution insofar as can be fairly ascertained, cannot be availed of by any accident victim or
claimant as an instrument of enrichment by reason of an accident.



Before Us is a Petition for Review on Certiorari under Rule 45, seeking to reverse and set aside the
July 28, 2010 Decision of the Court of Appeals (CA) and its October 29, 2010 Resolution denying the
motion for reconsideration filed by petitioner Malayan Insurance Co., Inc. (Malayan Insurance). The
July 28, 2010 CA Decision reversed and set aside the Decision dated February 2, 2009 of the
Regional Trial Court, Branch 51 in Manila.


At around 5 oclock in the morning of December 17, 1995, an accident occurred at the corner of EDSA
and Ayala Avenue, Makati City, involving four (4) vehicles, to wit: (1) a Nissan Bus operated by Aladdin
Transit with plate number NYS 381; (2) an Isuzu Tanker with plate number PLR 684; (3) a Fuzo Cargo
Truck with plate number PDL 297; and (4) a Mitsubishi Galant with plate number TLM 732. [4]

Based on the Police Report issued by the on-the-spot investigator, Senior Police Officer 1 Alfredo M.
Dungga (SPO1 Dungga), the Isuzu Tanker was in front of the Mitsubishi Galant with the Nissan Bus

on their right side shortly before the vehicular incident. All three (3) vehicles were at a halt along EDSA
facing the south direction when the Fuzo Cargo Truck simultaneously bumped the rear portion of the
Mitsubishi Galant and the rear left portion of the Nissan Bus. Due to the strong impact, these two
vehicles were shoved forward and the front left portion of the Mitsubishi Galant rammed into the rear
right portion of the Isuzu Tanker.

Previously, particularly on December 15, 1994, Malayan Insurance issued Car Insurance Policy No.
PV-025-00220 in favor of First Malayan Leasing and Finance Corporation (the assured), insuring the
aforementioned Mitsubishi Galant against third party liability, own damage and theft, among others.
Having insured the vehicle against such risks, Malayan Insurance claimed in its Complaint dated
October 18, 1999 that it paid the damages sustained by the assured amounting to PhP 700,000.

Maintaining that it has been subrogated to the rights and interests of the assured by operation of law
upon its payment to the latter, Malayan Insurance sent several demand letters to respondents Rodelio
Alberto (Alberto) and Enrico Alberto Reyes (Reyes), the registered owner and the driver, respectively,
of the Fuzo Cargo Truck, requiring them to pay the amount it had paid to the assured. When
respondents refused to settle their liability, Malayan Insurance was constrained to file a complaint for
damages for gross negligence against respondents.

In their Answer, respondents asserted that they cannot be held liable for the vehicular accident, since
its proximate cause was the reckless driving of the Nissan Bus driver. They alleged that the speeding
bus, coming from the service road of EDSA, maneuvered its way towards the middle lane without due
regard to Reyes right of way. When the Nissan Bus abruptly stopped, Reyes stepped hard on the
brakes but the braking action could not cope with the inertia and failed to gain sufficient traction. As a
consequence, the Fuzo Cargo Truck hit the rear end of the Mitsubishi Galant, which, in turn, hit the
rear end of the vehicle in front of it. The Nissan Bus, on the other hand, sideswiped the Fuzo Cargo
Truck, causing damage to the latter in the amount of PhP 20,000. Respondents also controverted the
results of the Police Report, asserting that it was based solely on the biased narration of the Nissan
Bus driver.

After the termination of the pre-trial proceedings, trial ensued. Malayan Insurance presented the
testimony of its lone witness, a motor car claim adjuster, who attested that he processed the insurance
claim of the assured and verified the documents submitted to him. Respondents, on the other hand,
failed to present any evidence.

In its Decision dated February 2, 2009, the trial court, in Civil Case No. 99-95885, ruled in favor of
Malayan Insurance and declared respondents liable for damages. The dispositive portion reads:

Judgment rendered in favor of the plaintiff against defendants jointly and severally to pay plaintiff the


The amount of P700,000.00 with legal interest from the time of the filing of the complaint;


Attorneys fees of P10,000.00 and;


Cost of suit.
Dissatisfied, respondents filed an appeal with the CA, In its Decision dated July 28, 2010, the CA
reversed and set aside the Decision of the trial court and ruled in favor of respondents, disposing:

WHEREFORE, the foregoing considered, the instant appeal is hereby GRANTED and the assailed
Decision dated 2 February 2009 REVERSED and SET ASIDE. The Complaint dated 18 October 1999
is hereby DISMISSED for lack of merit. No costs.


The CA held that the evidence on record has failed to establish not only negligence on the part of
respondents, but also compliance with the other requisites and the consequent right of Malayan
Insurance to subrogation. It noted that the police report, which has been made part of the records of
the trial court, was not properly identified by the police officer who conducted the on-the-spot
investigation of the subject collision. It, thus, held that an appellate court, as a reviewing body, cannot
rightly appreciate firsthand the genuineness of an unverified and unidentified document, much less
accord it evidentiary value.

Subsequently, Malayan Insurance filed its Motion for Reconsideration, arguing that a police report is
a prima facie evidence of the facts stated in it. And inasmuch as they never questioned the
presentation of the report in evidence, respondents are deemed to have waived their right to question
its authenticity and due execution.

In its Resolution dated October 29, 2010, the CA denied the motion for reconsideration. Hence,
Malayan Insurance filed the instant petition.


In its Memorandum dated June 27, 2011 raised by Malayan Insurance were sum up to (1) the
admissibility of the police report; (2) the sufficiency of the evidence to support a claim for gross
negligence; and (3) the validity of subrogation in the instant case.


Admissibility of the Police Report

Malayan Insurance contends that, even without the presentation of the police investigator who
prepared the police report, said report is still admissible in evidence, especially since respondents
failed to make a timely objection to its presentation in evidence. Respondents counter that since the
police report was never confirmed by the investigating police officer, it cannot be considered as part of
the evidence on record.

Indeed, under the rules of evidence, a witness can testify only to those facts which the witness knows
of his or her personal knowledge, that is, which are derived from the witness own
perception.Concomitantly, a witness may not testify on matters which he or she merely learned from
others either because said witness was told or read or heard those matters. Such testimony is
considered hearsay and may not be received as proof of the truth of what the witness has learned.
This is known as the hearsay rule.

Entries in official records made in the performance of his duty by a public officer of the Philippines, or
by a person in the performance of a duty specially enjoined by law are prima facie evidence of the
facts therein stated.

Sufficiency of Evidence

Malayan Insurance contends that since Reyes, the driver of the Fuzo Cargo truck, bumped the rear of
the Mitsubishi Galant, he is presumed to be negligent unless proved otherwise. It further contends that
respondents failed to present any evidence to overturn the presumption of negligence. Contrarily,
respondents claim that since Malayan Insurance did not present any witness who shall affirm any
negligent act of Reyes in driving the Fuzo Cargo truck before and after the incident, there is no
evidence which would show negligence on the part of respondents.

One of the theoretical bases for the doctrine is its necessity, i.e., that necessary evidence is absent or
not available.

The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the
instrumentality which causes the injury either knows the cause of the accident or has the best
opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is compelled
to allege negligence in general terms and to rely upon the proof of the happening of the accident in

order to establish negligence. The inference which the doctrine permits is grounded upon the fact that
the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the
defendant but inaccessible to the injured person.

In the case at bar, aside from the statement in the police report, none of the parties disputes the fact
that the Fuzo Cargo Truck hit the rear end of the Mitsubishi Galant, which, in turn, hit the rear end of
the vehicle in front of it. Respondents, however, point to the reckless driving of the Nissan Bus driver
as the proximate cause of the collision, which allegation is totally unsupported by any evidence on
record. And assuming that this allegation is, indeed, true, it is astonishing that respondents never even
bothered to file a cross-claim against the owner or driver of the Nissan Bus.

As mentioned above, the requisites for the application of the res ipsa loquitur rule are the following: (1)
the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the
instrumentality or agency which caused the injury was under the exclusive control of the person
charged with negligence; and (3) the injury suffered must not have been due to any voluntary action or
contribution on the part of the person injured.

In the instant case, the Fuzo Cargo Truck would not have had hit the rear end of the Mitsubishi Galant
unless someone is negligent. Also, the Fuzo Cargo Truck was under the exclusive control of its driver,
Reyes. Even if respondents avert liability by putting the blame on the Nissan Bus driver, still, this
allegation was self-serving and totally unfounded. Finally, no contributory negligence was attributed to
the driver of the Mitsubishi Galant. Consequently, all the requisites for the application of the doctrine
of res ipsa loquitur are present, thereby creating a reasonable presumption of negligence on the part
of respondents.

Validity of Subrogation

Malayan Insurance contends that there was a valid subrogation in the instant case, as evidenced by
the claim check voucher and the Release of Claim and Subrogation Receipt presented by it before the
trial court. Respondents, however, claim that the documents presented by Malayan Insurance do not
indicate certain important details that would show proper subrogation.

Note also that when a party desires the court to reject the evidence offered, it must so state in
the form of a timely objection and it cannot raise the objection to the evidence for the first time
on appeal. Because of a partys failure to timely object, the evidence becomes part of the
evidence in the case. Thereafter, all the parties are considered bound by any outcome arising
from the offer of evidence properly presented.

Subrogation is the substitution of one person by another with reference to a lawful claim or right, so
that he who is substituted succeeds to the rights of the other in relation to a debt or claim, including its
remedies or securities. The principle covers a situation wherein an insurer has paid a loss under an
insurance policy is entitled to all the rights and remedies belonging to the insured against a third party
with respect to any loss covered by the policy. It contemplates full substitution such that it places the
party subrogated in the shoes of the creditor, and he may use all means that the creditor could employ
to enforce payment.

We have held that payment by the insurer to the insured operates as an equitable assignment to the
insurer of all the remedies that the insured may have against the third party whose negligence or
wrongful act caused the loss. The right of subrogation is not dependent upon, nor does it grow out of,
any privity of contract. It accrues simply upon payment by the insurance company of the insurance
claim. The doctrine of subrogation has its roots in equity. It is designed to promote and to accomplish
justice; and is the mode that equity adopts to compel the ultimate payment of a debt by one who, in
justice, equity, and good conscience, ought to pay.

The petition was GRANTED. The CAs July 28, 2010 Decision and October 29, 2010 Resolution in
CA-G.R. CV No. 93112 are hereby REVERSED and SET ASIDE. The Decision dated February 2,
2009 issued by the trial court in Civil Case No. 99-95885 is hereby REINSTATED.

Ramos vs pepsi cola