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4. DEFENSES THAT MAY BE RAISED BY DEFENDANT
4.1. Damnum Absque Injuria or Volenti Non Fit Injuria
NIKKO HOTEL MANILA GARDEN and RUBY LIM, petitioners,
vs.
ROBERTO REYES, a.k.a. AMAY BISAYA,respondent.
GR 154259 (2005)
Nikko Hotel : Employer of Ruby Lim; place where Mr. Masakazu
Tsuruoka’s party was held
Ruby Lim : defendant, Hotel’s executive secretary who organized
the party esp. guest list
Reyes : plaintiff alleging he was rudely directed to leave a part
which he was not invited;
an actor of long standing; a co-host of a radio program
over DZRH; a Board Member of the Music Singer
Composer (MUSICO) chaired by popular singer Imelda
Papin; a showbiz Coordinator of Citizen Crime Watch; and
1992 official candidate of the KBL Party for Governor of
Bohol; and an awardee of a number of humanitarian
organizations of the Philippines
FACTS:
 Mr. Reyes was having a coffee at the lobby of Hotel Nikko when
an old friend, Dr.Filart, asked him to join the party of the former
manager of the said hotel, Mr. Tsuruoka. This is formal party in a
posh, five-star hotel, for-invitation-only.
 Then came a person who was clearly uninvited (by the celebrant)
and who could not just disappear into the crowd as his face is
known by many, being an actor.
 REYES version:
- When he was helping himself at the buffet table, Ms. Lim
approached him and said to leave the party for it was
intended for a number of guests.
- Mr. Reyes claimed that he was humiliated by the manner Ms.
Lim asked him to leave.
- He alleged that Ms. Lim asked him to leave in a loud voice
enough to be heard by the other guests. He was accompanied
by a Makati policeman in leaving the penthouse.
- He was more embarrassed when Dr.Filart denied that she
invited him on the said party.
 LIM version:
- admitted having asked Mr. Reyes to leave the party but not
under the ignominious circumstance painted by the latter.
- As the organizer of the party and the very person who
generated the guest list, Ms. Lim spotted the presence of Mr.
Reyes and it did not yet appear that the celebrant was aware
of his presence
- Mindful of the celebrant’s instruction to keep the party
intimate, she approached several people to inquire into the
presence of Mr. Reyes and requested them to tell Mr. Reyes
to leave the party as he was not invited
- After several attempts, Mr. Reyes was already helping himself
to the food, she decided to wait.
- When Mr. Reyes went to a corner and started to eat, she
approached him and said: alamninyo, hindoho kayo
dapatnandito. Pero total nakakuhanaho kayo ng pagkain,
ubusinnalangninyo at pagkatapos kung
pwedelangpoumalisna kayo.
- She then turned around trusting that Mr. Reyes would show
enough decency to leave, but to her surprise, he began
screaming and making a big scene, and even threatened to
dump food on her.
 Lower court:
- ruled that Ms. Lim did not abuse her right to ask Mr. Reyes to
leave the party as she talked to him politely and discreetly
 CA reversed the ruling
- held that Ms. Lim is liable for damages as she needlessly
embarrassed Mr. Reyes by telling him not to finish his food
and to leave the place within hearing distance of the other
guests
 Both courts, however, were in agreement that it was Dr.Filarts
invitation that brought Mr. Reyes to the party.
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ISSUE:
Whether Ruby Lim acted abusively in asking Mr. Reyesto leave the party
where he was not invited by the celebrant thereof thereby becoming liable
under Articles 19 and 21 of the Civil Code. Parenthetically, and if Ruby Lim
were so liable, whether Hotel Nikko, as her employer, is solidarily liable
HELD:
No.
To unnecessarily call attention to the presence of Mr. Reyes would
certainly reflect badly on Ms. Lim’s ability to follow the instructions of the
celebrant to invite only his close friends and some of the hotels personnel.
Mr. Reyes, upon whom the burden rests to prove that indeed Ms. Lim
loudly and rudely ordered him to leave, could not offer any satisfactory
explanation why Ms. Lim would do that and risk ruining a formal and
intimate affair. On the contrary, Mr. Reyes, on cross-examination, had
unwittingly sealed his fate by admitting that when Ms. Lim talked to him,
she was very close - close enough for him to kiss.
In the absence of any proof of motive on the part of Ms. Lim to humiliate
Mr. Reyes and expose him to ridicule and shame, it is highly unlikely that
she would shout at him from a very close distance. Ms. Lim having been in
the hotel business for twenty years wherein being polite and discreet are
virtues to be emulated, the testimony of Mr. Reyes that she acted to the
contrary does not inspire belief and is indeed incredible.
NOTE:
Petitioners Lim and Hotel Nikko contend that pursuant to the doctrine of
volenti non fit injuria, they cannot be made liable for damages as
respondent Reyes assumed the risk of being asked to leave (and being
embarrassed and humiliated in the process) as he was a gate-crasher.
The doctrine of volenti non fit injuria (to which a person assents is not
esteemed in law as injury) refers to self-inflicted injury or to the consent to
injury which precludes the recovery of damages by one who has knowingly
and voluntarily exposed himself to danger, even if he is not negligent in
doing so. As formulated by petitioners, however, this doctrine does not find
application to the case at bar because even if respondent Reyes assumed
the risk of being asked to leave the party, petitioners, under Articles 19 and
21 of the New Civil Code, were still under obligation to treat him fairly in
order not to expose him to unnecessary ridicule and shame.
===CONTRA===
CEBU COUNTRY CLUB vs ELIZAGAQUE (missing)
4.2. Contributory Negligence By Plaintiff
CABARDO V. CA
FACTS:
Peralta (P) was a driver of CIGI’s truck-tanker. While driving, he met an
accident with a Volkswagen car. P claimed that the car suddenly took the
inner lane which was where the truck was. This forced P to swerve to the
left side and as a result, the truck-tanker veered and rolled over the center
island of the expressway until it fell on its right side, lying perpendicular to
the expressway with its underside facing the north.With him at the time of
the accident was Cabardo(C) who was his helper and pump operator.
Moments later, as C was about to put up an early warning device, Rodil (R),
in a Toyota corolla, then crashed to the truck due to poor visibility cause by
the heavy rain and hit C on his left leg, causing him to be thrown off
balance and lose consciousness and that as a result, he suffered a
fractured left leg and other injuries.
C and P then gave their statements to the Integrated National Police on the
basis of which a criminal case for Reckless Imprudence resulting in Serious
Physical Injuries was filed by the Bian INP police against R.
C filed a complaint for damages against R in Bulacan. R also filed a case
against P and CIGI in Sta Cruz.
RTC of Sta Cruz rendered judgment finding CIGI and P guilty of negligence
and held R guilty of contributory negligence.
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R asked the case in Malolos to be dismissed but the court denied that
there was litispendentia on the ground that C was not a party to the suit in
Bulacan. It also then rendered judgment against R. It found R guilty of
recklessness in driving his car which, it held, was the proximate cause of
the injuries suffered by C.
R then appealed to the CA which rendered a decision reversing the RTC of
Sta Cruz.
ISSUE:
Whether the decision of the CA was correct?
HELD:
No. We find the petition to be meritorious. To begin with, both the Santa
Cruz court and the court below found private respondent JuanitoRodil
guilty of negligence in running his Toyota Corolla at a high speed in
driving rain with the result that he did not see the disabled truck-tanker
until it was late and thus failed to stop his car on time.
Indeed, there is no question that private respondent drove his car
negligently. The question in this case is whether petitioners injuries were
caused by private respondents car or whether he was injured as a result of
the fact that the truck-tanker in which he was riding turned turtle and fell
on its side.
After reviewing the evidence in this case, we are inclined to agree with the
trial courts finding that petitioners injuries were caused by private
respondents car. The Court of Appeals reversed the trial courts decision on
the ground that petitioner, as plaintiff below, failed to prove that he
sustained injuries as a result of having been hit by private respondents car
and not as a result of the truck-tanker having veered and rolled over its
side. The appellate courts decision is based mainly on alleged
inconsistencies in the testimonies of petitioner and his witness Jose
Peralta.
There are indeed inconsistencies but these are minor and
inconsequential. What is important is that the statements dovetail in
essential details with the testimonies given in court: Petitioner claimed
that he was unhurt after their vehicle turned turtle and fell on its side; that
he and Jose Peralta, who was driving the vehicle, got out of the truck-
tanker; that he was asked by Peralta to put up the EWD; and that
petitioner was hurt because he was hit by private respondents
car. Petitioner said in court that he was hit while checking the pressure
gauge. It is possible that this happened before he could put up the EWD.
Indeed, it is more probable that petitioners injuries were caused by private
respondents car hitting him.First, as the Court of Appeals itself found,
petitioner was taken to a hospital in Bian, Laguna together with the
Rodils. Had he been injured earlier when the truck-tanker turned turtle, he
would, in all probability, have been taken for treatment much earlier.
If the plaintiff sustained his injuries when the truck-tanker he was riding
turned turtle and landed on its right side in the center island of the
expressway, it would not have been on his left knee but in some parts of
the body, more especially on the right side that must have came in contact
with the door. This is the law of gravity, and testimony to the contrary
should not be given credence. The plaintiff was categorical in his testimony
that after the car fell on its right side the driver and he came out of the
truck and he was already looking at the guage [sic] carrying the EWD when
the car hit him. The defendant, in contrast, did not state categorically that
his car did not hit the plaintiff. What defendant testified was that he did
not see a person hit by the car. Moreover, defendant admitted that
immediately before the accident he was driving on the left lane at the rate
of 60 to 70 kilometers per hour and he could hardly see an object at a
distance of ten (10) meters because of the heavy rain.
NEGROS NAVIGATION vs CA
FACTS:
 Private Respondent Ramon Miranda purchased from Petitioner
Negros Navigation four special cabin tickets for his wife (Ardita),
daughter (Rosario), son (Ramon) and niece (Elfreda) going to
Bacolod City to attend a family reunion.
 The ship that they got into was Don Juan, which collided with M/T
Tacloban City which was an oil tanker owned by PNOC and
PNOC/STC, as a result the M/V Don Juan sank.
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 Several of the passengers perished in the sea tragedy, the bodies
of the victims were found and brought to shore but the four
members of private respondents’ families were never found.
 Respondent filed a complaint in the RTC against the petitioner
Negros Navigation, PNOC and PNOC/STC seeking damages for the
death of the 4 petitioners’ family member.
 Petitioner admitted that respondent purchased tickets as listed on
the passenger manifest, that M/V Don Juan sank after being
rammed by M/T Tacloban City, that some of the passengers died
but denied that the four relatives of the private respondents
actually boarded the vessel as shown that the fact that their
bodies were never recovered, that the ship was seaworthy,
manned by a competent crew and that the collision was due to
the fault of the crew of M/T Tacloban City.
 PNOC and Petitioner Negros Navigation entered to a compromise
agreement whereby petitioner assumed full responsibility for the
payment and satisfaction of all claims arising out of or in
connection with the collision and releasing PNOC from any
liability.
 The RTC decided in favor of the Respondent and CA affirmed with
modification
Issue:
W/N There was contributory negligence on the part of the Petitioner and
its’ crew?
Ruling:
Yes there was contributory negligence on the part of the petitioner and its’
crew.
 The court relied in Mecenas vs. IAC, which found that although he
proximate cause of the mishap was the negligence of the crew of
the M/T Tacloban City, the crew of the Don Juan was equally
negligent as it found that the latter’s master was playing mahjong
at the time of collision, and the officer on watch admitted that he
failed to call the attention of the captain to the imminent danger
facing them. That the captain and the crew of the M/V Don Juan
failed to take the steps to prevent the collision or at least delay
the sinking of the ship and supervise the abandoning of the ship.
 Petitioner Negros Navigation was found equally negligent in
tolerating the playing of Mahjong by the ship captain and the
other crew members while on board the ship and failing to keep
the M/V Don Juan seaworthy so much as that the ship sank within
10 to 15 minutes of its impact with the M/T Tacloban City.
 It was also found that Don Juan was overloaded in excess of 140
person and also taking the circumstances that M/V Don Juan as
the faster and better equipped vessel could have avoided the
collision with the PNOC Tanker. That even if Tacloban City had
been at fault for failing to observe an internationally-recognized
rule of navigation, the Don Juan was guilty of contributory
negligence.
 As per Justice Feliciano that the Don Juan was twice as fast as the
Tacloban City, it carried the full complement of offices and crew
members specified for a passenger vessel of her class, it was
equipped with a radar which was functioning, that an officer of
Don Juan on watch has sighted the Tacloban city on his radar
while the latter was still 4 nautical miles away. Base from this
circumstances the Don Juan had it taken seriously the duty of
extraordinary diligence could have easily avoided the collision
with the Tacloban City.
 Don Juan was negligent in failing to take early preventive action
and in allowing the two vessel to come to such close quarters as
to render the collision inevitable when there was no necessity for
passing so near to the tacloban city as to create the hazard or
inevitability. It also did not answer the horn blast to signal its own
intention and proceded to turn hard to starboard.
4.3. Doctrine of Last Clear Chance
PICART vs SMITH
FACTS:
Plaintiff was riding on his pony over the bridge, but on the wrong side of
the road. Defendant was likewise driving his automobile coming from the
opposite direction going at the rate of about ten or twelve miles per hour.
As the defendant neared the bridge he saw a horseman on it and blew his
horn to give warning of his approach. He continued his course and after he
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had taken the bridge he gave two more successive blasts, as it appeared to
him that the man on horseback before him was not observing the rule of
the road. Instead of directing the horse to the other side of the road, the
plaintiff pulled the pony closely up against the railing on the right side of
the bridge. As the driver continues to traverse the bridge, maintaining the
same speed, and sensing that the plaintiff will not move to the other side,
the former made a sudden turn of his car to avoid hitting the horse head
on. The horse became frightened, turned its body across the bridge with
its head toward the railing, hit the car and broke its legs. The horse
eventually died.
Issue:
Whether or not defendant is liable for damages for the death of the horse.
Held:
Yes, thru the doctrine of last clear chance.
The test by which to determine the existence of negligence in a particular
case may be stated as follows: Did the defendant in doing the alleged
negligent act use that person would have used in the same situation? If
not, then he is guilty of negligence.
Applying this test to the conduct of the defendant in the present case we
think that negligence is clearly established. A prudent man, placed in the
position of the defendant, would in our opinion, have recognized that the
course which he was pursuing was fraught with risk, and would therefore
have foreseen harm to the horse and the rider as reasonable consequence
of that course. Under these circumstances the law imposed on the
defendant the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for
he was guilty of antecedent negligence in planting himself on the wrong
side of the road. But as we have already stated, the defendant was also
negligent; and in such case the problem always is to discover which agent
is immediately and directly responsible. It will be noted that the negligent
acts of the two parties were not contemporaneous, since the negligence of
the defendant succeeded the negligence of the plaintiff by an appreciable
interval. Under these circumstances the law is that the person who has the
last fair chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the prior
negligence of the other party.
CORLISS vs MANILA RAILROAD
FACTS:
Preciolita V. Corliss filed a complaint for damages for the death of her
husband Ralph W. Corliss, was, at the tender age of twenty-one. His jeep
collided with the locomotive of Manila Railroad Corp at the railroad
crossing crossing in Balibago, Angeles, Pampanga, in front of the Clark Air
Force Base where Ralph was working as an air police. At the time of the
accident, he was driving the fatal jeep; that he was then returning in said
jeep, together with a P.C. soldier, to the Base; and that Corliss Jr. died of
serious burns at the Base Hospital the next day, while the soldier sustained
serious physical injuries and burns.
Ronald J. Ennis, a witness of the plaintiff said that he saw the jeep coming
towards the Base. He said that said jeep slowed down before reaching the
crossing, that it made a brief stop but that it did not stop — dead stop.
Elaborating, he declared that while it was slowing down, Corliss Jr. shifted
into first gear and that was what he meant by a brief stop. He also testified
that he could see the train coming from the direction of San Fernando and
that he heard a warning but that it was not sufficient enough to avoid the
accident.
Virgilio de la Paz, another witness of the plaintiff, testified that he saw the
train coming from Angeles and a jeep going towards the direction of Clark
Field. He stated that he heard the whistle of the locomotive and saw the
collision. The jeep, which caught fire, was pushed forward. He helped the
P.C. soldier. He stated that he saw the jeep running fast and heard the
tooting of the horn. It did not stop at the railroad crossing, according to
him.
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The operator Teodorico Capili testified that the locomotive had been
previously inspected and found to be in good condition approached, the
crossing, that is, about 300 meters away, he blew the siren and repeated it
in compliance with the regulations until he saw the jeep suddenly spurt
and that although the locomotive was running between 20 and 25
kilometers an hour and although he had applied the brakes, the jeep was
caught in the middle of the tracks.
Corliss alleged that at the time of the accident, the crossing bars not
having been put down and there being no guard at the gate-house, there
still was a duty on the part of Corliss to stop his jeep to avoid a collision
and that Teodorico Capili, who drove the engine, was not qualified to do
so. Also, the whistle was not sounded and the brakes not applied at a
distance of 300 meters before reaching the crossing.
The lower court ruled in favor of Manila Railroad since the weight of
authorities is to the effect that a railroad track is in itself a warning or a
signal of danger to those who go upon it, and that those who, for reasons
of their own, ignore such warning, do so at their own risk and
responsibility. Corliss Jr., who undoubtedly had crossed the checkpoint
frequently, if not daily, must have known that locomotive engines and
trains usually pass at that particular crossing where the accident had taken
place."
Issue:
WON the Court erred in ruling that Corliss had the last clear chance to
avoid the collision.
Held:
Speaking of a 1927 decision by Justice Holmes, he had the following to say:
"Especially noteworthy in this respect is the attempt Mr. Justice Holmes, in
Baltimore & Ohio Railway v. Goodman, to 'lay down a standard once for
all,' which would require an automobile driver approaching a railroad
crossing with an obstructed view to stop, look and listen, and if he cannot
be sure otherwise that no train is coming to get out of the car. The basic
idea behind this is sound enough: it is by no means proper care to cross a
railroad track without taking reasonable precautions against a train, and
normally such precautions will require looking, hearing, and a stop, or at
least slow speed, where the view is obstructed."
What Justice Cardozo announced would merely emphasize what was set
forth earlier that each and every, case on questions of negligence is to be
decided in accordance with the peculiar circumstances that present
themselves. There can be no hard and fast rule. There must be that
observance of that degree of care, precaution, and vigilance which the
situation demands. Thus defendant-appellee acted. It is undeniable then
that no negligence can rightfully be imputed to it.
What commends itself for acceptance is this conclusion arrived at by the
lower court: "Predicated on the testimonies of the plaintiff's witnesses, on
the knowledge of the deceased and his familiarity with the setup of the
checkpoint, the existence of the tracks; and on the further fact that the
locomotive had blown its siren or whistle, which was heard by said
witnesses, it is clear that Corliss Jr. was so sufficiently warned in advance of
the oncoming train that it was incumbent upon him to avoid a possible
accident — and this consisted simply in stopping his vehicle before the
crossing and allowing the train to move on. A prudent man under similar
circumstances would have acted in this manner. This, unfortunately,
Corliss, Jr. failed to do. Complaint dismissed.
PLDT vs CA, Spouses Gloria and Antonio Esteban
FACTS:
 This case had its inception in an action for damages instituted in
the former Court of First Instance of Negros Occidental 1 by
private respondent spouses against petitioner Philippine Long
Distance Telephone Company (PLDT, for brevity) for the injuries
they sustained in the evening of July 30, 1968 when their jeep ran
over a mound of earth and fell into an open trench, an
excavation allegedly undertaken by PLDT for the installation of
its underground conduit system. The complaint alleged that
respondent Antonio Esteban failed to notice the open trench
which was left uncovered because of the creeping darkness and
the lack of any warning light or signs. As a result of the accident,
respondent Gloria Esteban allegedly sustained injuries on her
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arms, legs and face, leaving a permanent scar on her cheek,
while the respondent husband suffered cut lips. In addition, the
windshield of the jeep was shattered
 PLDT, in its answer, denies liability on the contention that the
injuries sustained by respondent spouses were the result of their
own negligence and that the entity which should be held
responsible, if at all, is L.R. Barte and Company (Barte, for short),
an independent contractor which undertook the construction of
the manhole and the conduit system. 3 Accordingly, PLDT filed a
third-party complaint against Barte alleging that, under the terms
of their agreement, PLDT should in no manner be answerable for
any accident or injuries arising from the negligence or
carelessness of Barte or any of its employees. 4 In answer thereto,
Barte claimed that it was not aware nor was it notified of the
accident involving respondent spouses and that it had complied
with the terms of its contract with PLDT by installing the
necessary and appropriate standard signs in the vicinity of the
work site, with barricades at both ends of the excavation and with
red lights at night along the excavated area to warn the traveling
public of the presence of excavations
 RTC ruled in favour of respondents
 CA reversed judgment and held that Esteban spouses were
negligent thereby absolving PLDT.
Issue:
w/n PLDT can be held liable for damages
Held:
No
Prescinding from the aforesaid procedural lapses into the substantive
merits of the case, we find no error in the findings of the respondent court
in its original decision that the accident which befell private respondents
was due to the lack of diligence of respondent Antonio Esteban and was
not imputable to negligent omission on the part of petitioner PLDT. Such
findings were reached after an exhaustive assessment and evaluation of
the evidence on record, as evidenced by the respondent court's resolution
of January 24, 1980 which we quote with approval:
First. Plaintiff's jeep was running along the inside lane of
Lacson Street. If it had remained on that inside lane, it
would not have hit the ACCIDENT MOUND.
Exhibit B shows, through the tiremarks, that the
ACCIDENT MOUND was hit by the jeep swerving from the
left that is, swerving from the inside lane. What caused
the swerving is not disclosed; but, as the cause of the
accident, defendant cannot be made liable for the
damages suffered by plaintiffs. The accident was not due
to the absence of warning signs, but to the unexplained
abrupt swerving of the jeep from the inside lane. That
may explain plaintiff-husband's insistence that he did not
see the ACCIDENT MOUND for which reason he ran into
it.
Second. That plaintiff's jeep was on the inside lane before
it swerved to hit the ACCIDENT MOUND could have been
corroborated by a picture showing Lacson Street to the
south of the ACCIDENT MOUND.
It has been stated that the ditches along Lacson Street
had already been covered except the 3 or 4 meters
where the ACCIDENT MOUND was located. Exhibit B-1
shows that the ditches on Lacson Street north of the
ACCIDENT MOUND had already been covered, but not in
such a way as to allow the outer lane to be freely and
conveniently passable to vehicles. The situation could
have been worse to the south of the ACCIDENT MOUND
for which reason no picture of the ACCIDENT MOUND
facing south was taken.
Third.Plaintiff's jeep was not running at 25 kilometers an
hour as plaintiff-husband claimed. At that speed, he
could have braked the vehicle the moment it struck the
ACCIDENT MOUND. The jeep would not have climbed the
ACCIDENT MOUND several feet as indicated by the
tiremarks in Exhibit B. The jeep must have been running
quite fast. If the jeep had been braked at 25 kilometers
an hour, plaintiff's would not have been thrown against
the windshield and they would not have suffered their
injuries.
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Fourth. If the accident did not happen because the jeep
was running quite fast on the inside lane and for some
reason or other it had to swerve suddenly to the right
and had to climb over the ACCIDENT MOUND, then
plaintiff-husband had not exercised the diligence of a
good father of a family to avoid the accident. With the
drizzle, he should not have run on dim lights, but should
have put on his regular lights which should have made
him see the ACCIDENT MOUND in time. If he was running
on the outside lane at 25 kilometers an hour, even on
dim lights, his failure to see the ACCIDENT MOUND in
time to brake the car was negligence on his part. The
ACCIDENT MOUND was relatively big and visible, being 2
to 3 feet high and 1-1/2 feet wide. If he did not see the
ACCIDENT MOUND in time, he would not have seen any
warning sign either. He knew of the existence and
location of the ACCIDENT MOUND, having seen it many
previous times. With ordinary precaution, he should have
driven his jeep on the night of the accident so as to avoid
hitting the ACCIDENT MOUND. 29
The above findings clearly show that the negligence of respondent Antonio
Esteban was not only contributory to his injuries and those of his wife but
goes to the very cause of the occurrence of the accident, as one of its
determining factors, and thereby precludes their right to recover
damages. 30 The perils of the road were known to, hence appreciated and
assumed by, private respondents. By exercising reasonable care and
prudence, respondent Antonio Esteban could have avoided the injurious
consequences of his act, even assuming arguendo that there was some
alleged negligence on the part of petitioner.
The presence of warning signs could not have completely prevented the
accident; the only purpose of said signs was to inform and warn the public
of the presence of excavations on the site. The private respondents already
knew of the presence of said excavations. It was not the lack of knowledge
of these excavations which caused the jeep of respondents to fall into the
excavation but the unexplained sudden swerving of the jeep from the
inside lane towards the accident mound. As opined in some quarters, the
omission to perform a duty, such as the placing of warning signs on the site
of the excavation, constitutes the proximate cause only when the doing of
the said omitted act would have prevented the injury. 31 It is basic that
private respondents cannot charge PLDT for their injuries where their own
failure to exercise due and reasonable care was the cause thereof. It is
both a societal norm and necessity that one should exercise a reasonable
degree of caution for his own protection. Furthermore, respondent
Antonio Esteban had the last clear chance or opportunity to avoid the
accident, notwithstanding the negligence he imputes to petitioner PLDT.
As a resident of Lacson Street, he passed on that street almost everyday
and had knowledge of the presence and location of the excavations there.
It was his negligence that exposed him and his wife to danger, hence he is
solely responsible for the consequences of his imprudence.
LAPANDAY AGRI AND DEVT CORP vs ANGALA
FACTS:
On May 4, 1993, at about 2:45 p.m., a Datsun crewcab with plate no. PEC-
93 was driven by Apolonio Deocampo bumped into a 1958 Chevy pick-up
with plate no. MAM-475 owned by Michael Raymond Angala and driven by
BernulfoBorres. Lapanday Agricultural Development Corporation (LADECO)
owned the crewcab which was assigned to its manager Manuel Mendez.
Deocampo was the driver and bodyguard of Mendez. Both vehicles were
running along Rafael Castillo St., Agdao, Davao City heading north towards
Lanang, Davao City. The left door, front left fender, and part of the front
bumper of the pick-up were damaged.
Respondent Angala filed an action for Quasi-Delict, Damages, and
Attorney’s fees against LADECO, its administrative officer Henry Berenguel
and Deocampo. Respondent alleged that his pick-up was slowing down to
about five to ten kilometers per hour (kph) and was making a left turn
preparatory to turning south when it was bumped from behind by the
crewcab which was running at around 60 to 70 kph. The crewcab stopped
21 meters from the point of impact. Respondent alleged that he heard a
screeching sound before the impact. Respondent was seated beside the
driver and was looking at the speedometer when the accident took place.
Respondent testified that Borres made a signal because he noticed a
blinking light while looking at the speedometer.
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Respondent sent a demand letter to LADECO for the payment of the
damages he incurred because of the accident but he did not receive any
reply. Thus, respondent filed the case against LADECO, Berenguel, and
Deocampo.
In its March 3, 1995 Decision, the Regional Trial Court of Davao City,
Branch 15 ruled in favor of defendant and ordered LADECO and Deocampo
to solidarily pay the damages. The trial court found that Berenguel was not
liable because he was not the owner of the crewcab. LADECO and
Deocampo filed a motion for reconsideration but the same was denied on
June 13, 1995.
Petitioner filed an appeal before the Court of Appeals. However, the
appellate court affirmed in toto the trial court’s decision. Petitioners filed a
motion for reconsideration. In its March 11, 2002 Resolution, the Court of
Appeals denied the motion for lack of merit. Hence, the present petition
was filed before the Supreme Court.
ISSUE:
Whether or not the doctrine of last clear chance applies in the case at bar.
RULING:
Yes.
Since both parties are at fault in this case, the doctrine of last clear chance
applies.Petitioners allege that Borres did not take the proper lane before
executing the U-turn. Petitioners allege that Borres violated Section 45(b)
of RA 4136 and it was his recklessness that was the proximate cause of the
accident.
Section 45(b) of RA 4136 states:
Sec. 45. Turning at intersections. x xx
(b) The driver of a vehicle intending to turn to the left shall approach such
intersection in the lane for traffic to the right of and nearest to the center
line of the highway, and, in turning, shall pass to the left of the center of
the intersection, except that, upon highways laned for traffic and upon
one-way highways, a left turn shall be made from the left lane of traffic in
the direction in which the vehicle is proceeding.
Petitioners further allege that since Borres was violating a traffic rule at the
time of the accident, respondent and Borres were the parties at fault.
Petitioners cite Article 2185 of the Civil Code, thus:
Art. 2185. Unless there is proof to the contrary, it is presumed that a
person driving a motor vehicle has been negligent if at the time of the
mishap, he was violating any traffic regulation.
The doctrine of last clear chance states that where both parties are
negligent but the negligent act of one is appreciably later than that of the
other, or where it is impossible to determine whose fault or negligence
caused the loss, the one who has the last clear opportunity to avoid the
loss but failed to do so is chargeable with the loss. In this case, Deocampo
had the last clear chance to avoid the collision. Since Deocampo was
driving the rear vehicle, he had full control of the situation since he was in
a position to observe the vehicle in front of him. Deocampo had the
responsibility of avoiding bumping the vehicle in front of him. A U-turn is
done at a much slower speed to avoid skidding and overturning, compared
to running straight ahead. Deocampo could have avoided the vehicle if he
was not driving very fast while following the pick-up. Deocampo was not
only driving fast, he also admitted that he did not step on the brakes even
upon seeing the pick-up. He only stepped on the brakes after the collision.
ALLIED BANKING CORP
vs
BPI
G.R. No. 188363, February 27, 2013
FACTS:
On October 10, 2002, a check in the amount of P1,000,000.00 payable to
"Mateo
Mgt. Group International" (MMGI) was presented for deposit and accepted
at
petitioner's (Allied Bank) Kawit Branch. The check, post-dated"Oct. 9,
2003",was drawnagainst the account of Marciano Silva, Jr. (Silva) with
respondent BPI Bel-Air Branch.Upon receipt, petitioner sent the check for
clearing to respondent through thePhilippine Clearing House Corporation
(PCHC).The check was cleared by respondent and petitioner credited the
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account of MMGI withP1,000,000.00. On October 22, 2002, MMGI’s
account was closed and all the fundstherein were withdrawn. A month
later, Silva discovered the debit of P1,000,000.00from his account. In
response to Silva’s complaint, respondent credited his account withthe
aforesaid sum.
Petitioner filed a complaint before the Arbitration Committee, asserting
thatrespondent should solely bear the entire face value of the check due to
its negligence infailing to return the check to petitioner within the 24-hour
reglementary period asprovided in Section 20.1of the Clearing House Rules
and Regulations (CHRR) 2000. In itsAnswer with Counterclaims,
respondent charged petitioner with gross negligence foraccepting the
post-dated check in the first place. It contended that petitioner’s
admittednegligence was the sole and proximate cause of the loss.
ISSUE:
What does the Doctrine of Last Clear Chance enunciate?
HELD:
The doctrine of last clear chance, stated broadly, is that the negligence of
theplaintiff does not preclude a recovery for the negligence of the
defendant where itappears that the defendant, by exercising reasonable
care and prudence, might haveavoided injurious consequences to the
plaintiff notwithstanding the plaintiff’snegligence. The doctrine necessarily
assumes negligence on the part of the defendantand contributory
negligence on the part of the plaintiff, and does not apply except uponthat
assumption. Stated differently, the antecedent negligence of the plaintiff
does notpreclude him from recovering damages caused by the supervening
negligence of thedefendant, who had the last fair chance to prevent the
impending harm by the exerciseof due diligence. Moreover, in situations
where the doctrine has been applied, it wasdefendant’s failure to exercise
such ordinary care, havi
ng the last clear chance to avoidloss or injury, which was the proximate
cause of the occurrence of such loss or injury.
ISSUE:
Does the Doctrine of Last Clear Chance apply in this case?
HELD:
YES. In this case, the evidence clearly shows that the proximate cause of
theunwarranted encashment of the subject check was the negligence of
respondent who cleared a post-dated check sent to it thru the PCHC
clearing facility without observing itsown verification procedure. As
correctly found by the PCHC and upheld by the RTC, if only respondent
exercised ordinary care in the clearing process, it could have easilynoticed
the glaring defect upon seeing the date written on the face of the check
"Oct. 9,2003"Respondent could have then promptly returned the check
and with the check; thus dishonored, petitioner would have not credited
the amount thereof to the payee’saccount.
Thus, notwithstanding the antecedent negligence of the petitioner in
acceptingthe post-dated check for deposit, it can seek reimbursement
from respondent the amount credited to the payee’s account covering the
check.
===CONTRA===
LBC AIR CARGO vs CA
G.R. No. 101683. 23 February 1995.
(Petition for review of a decision of the CA reversing that of the RTC and
holding LBC and Tano liable.)
Facts:
 At about 11:30 am of 15 Nov 1987, Rogelio Monterola was
traveling on board his Suzuki motorcycle towards Mangaggoy on
the right lane along a dusty road in Bislig, Surigao del Sur.
 At about the same time, a cargo van of LBC, driven by petitioner
herein, Tano, Jr., was coming from the opposite direction on its
way to Bislig Airport.
 When Tano was approaching the airport entrance on his left, he
saw two vehicles racing against each other from the opposite
direction. Tano stopped the van and waited for the 2 vehicles to
pass by. The dust made the visibility extremely bad. Instead of
waiting for the dust to settled, Tano started to make a sharp left
turn towards the airport road. When he was about to reach the
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center of the right lane, the motorcycle driven by Monterola
suddenly emerged from the dust and smashed head-on against
the right side of the LBC van. Monterola died from the severe
injuries he sustained.
 A criminal case for "homicide thru reckless imprudence" was filed
against Tano. A civil suit was likewise instituted by the heirs of
deceased Monterola against Tano, along with Fernando Yu and
LBC Air Cargo Incorporated, for the recovery of damages.
 TC - dismissed both cases on the ground that the proximate cause
of the "accident" was the negligence of deceased Rogelio
Monterola.
 CA – Reversed TC decision. Defendants Jaime Tano and LBC Air
Cargo, Inc. to jointly and severally pay the plaintiff Patrocinia
Monterola
Issue:
Whether, LBC and Jaime Tano is liable for damages.
Ruling:
Yes.
The proximate cause of the accident was the negligence of petitioner Tano,
who, despite poor visibility, hastily executed a left turn without waiting for
the dust to settle. Petitioners poorly invoke the doctrine of "last clear
chance." The doctrine, in essence, is to the effect that where both parties
are negligent, but the negligent act of one is appreciably later in time
than that of the other, or when it is impossible to determine whose fault
or negligence should be attributed to the incident, the one who had the
last clear opportunity to avoid the impending harm and failed to do so is
chargeable with the consequences thereof.
In the case at bench, the victim was traveling along the lane where he was
rightly supposed to be. The incident occurred in an instant. No appreciable
time had elapsed, from the moment Tano swerved to his left to the actual
impact; that could have afforded the victim a last clear opportunity to
avoid the collision. However, there was contributory negligence on the
victim's part that warrants a mitigation of petitioner's liability for damages.
WHEREFORE, the appealed decision is AFFIRMED.
ACHEVARA vs RAMOS (missing)
4.4. Fortuitous Event and Doctrine of "Assumption of Risk"
JIMMY CO, doing business as Dragon Metal Mftg. vs CA, Broadway Motor
Sales Corp
FACTS:
 On July 18 1990, Co entrusted his Nissan pick–up to Broadway for
the following repairs:
o Bleed Injector Pump and all Nozzles;
o Adjust valve tappet
o Change oil and filter
o Service all the wheel brakes, clean and adjust the same
o Lubricate the accelerator linkages
o Replace the aircon belt
o Replace the battery
 Broadway undertook to return the Nissan on July 21, 1990 (i.e. in
2 days) fully serviced and in accordance with the job contract.
 On July 21, Co went back to reclaim the car, but was told that the
battery was still weak since it was not yet replaced. Co then took
it upon himself to purchase a battery from a nearby store within
the same day and to have Broadway install the same on the car.
 However, the battery was still not installed, and the delivery was
delayed to July 24 (i.e. 3 days later).
 When Co sought to reclaim the car, it was gone. Broadway told
him that the Nissan was carnapped earlier when Broadway's
employees were road–testing the same along Pedro Gil, Manila.
Broadway informed Co that the incident has been reported to
the police.
 Co thus filed the suit for damages against Broadway, for the
latter's alleged negligence.
o Broadway argued that the car was lost due to a
fortuitous event – the carnapping.
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o During pre–trial, it was agreed that the sole issue for
resolution is whether Broadway was negligent.
o RTC found Broadway guilty of delay in the performance
of its obligation and should thus be liable for the value
of the lost vehicle.
o CA reversed, holding that the RTC cannot pass on the
issue of the delay, and that the vehicle was lost due to a
fortuitous event.
ISSUE:
Whether Broadway can be held liable for the loss of the vehicle while the
same is in its custody for repair.
HELD:
Broadway should be liable.
As regards the preliminary issue resolved by the CA, the issue of delay is
necessarily intertwined with the principal issue of negligence, even though
it was not specifically raised as an issue in the lower court. Petitioners
imputation of negligence to private respondent is premised on delay which
is the very basis of the formers complaint. Thus, it was unavoidable for the
court to resolve the case, particularly the question of negligence without
considering whether private respondent was guilty of delay in the
performance of its obligation.
As regards the merits, Carnapping per se cannot be considered as a
fortuitous event. The fact that a thing was unlawfully and forcefully taken
from anothers rightful possession, as in cases of carnapping, does not
automatically give rise to a fortuitous event. To be considered as such,
carnapping entails more than the mere forceful taking of anothers
property. It must be proved and established that the event was an act of
God or was done solely by third parties and that neither the claimant nor
the person alleged to be negligent has any participation. In accordance
with the Rules of evidence, the burden of proving that the loss was due to
a fortuitous event rests on him who invokes it which in this case is the
private respondent. However, other than the police report of the alleged
carnapping incident, no other evidence was presented by private
respondent to the effect that the incident was not due to its fault. A police
report of an alleged crime, to which only private respondent is privy, does
not suffice to established the carnapping. Neither does it prove that there
was no fault on the part of private respondent notwithstanding the parties
agreement at the pre-trial that the car was carnapped. Carnapping does
not foreclose the possibility of fault or negligence on the part of private
respondent.
Even assuming arguendo that carnapping was duly established as a
fortuitous event, still private respondent cannot escape liability. Article
1165 of the New Civil Code makes an obligor who is guilty of delay
responsible even for a fortuitous event until he has effected the delivery.
In this case, private respondent was already in delay as it was supposed to
deliver petitioners car three (3) days before it was lost. Petitioners
agreement to the rescheduled delivery does not defeat his claim as private
respondent had already breached its obligation. Moreover, such accession
cannot be construed as waiver of petitioners right to hold private
respondent liable because the car was unusable and thus, petitioner had
no option but to leave it.
Assuming further that there was no delay, still working against private
respondent is the legal presumption under Article 1265 that its possession
of the thing at the time it was lost was due to its fault. This presumption is
reasonable since he who has the custody and care of the thing can easily
explain the circumstances of the loss. The vehicle owner has no duty to
show that the repair shop was at fault. All that petitioner needs to prove,
as claimant, is the simple fact that private respondent was in possession of
the vehicle at the time it was lost. In this case, private respondents
possession at the time of the loss is undisputed. Consequently, the burden
shifts to the possessor who needs to present controverting evidence
sufficient enough to overcome that presumption. Moreover, the
exempting circumstances - earthquake, flood, storm or other natural
calamity - when the presumption of fault is not applicable do not concur in
this case. Accordingly, having failed to rebut the presumption and since the
case does not fall under the exceptions, private respondent is answerable
for the loss.
It must likewise be emphasized that pursuant to Articles 1174 and 1262 of
the New Civil Code, liability attaches even if the loss was due to a
fortuitous event if the nature of the obligation requires the assumption of
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risk. Carnapping is a normal business risk for those engaged in the repair of
motor vehicles. For just as the owner is exposed to that risk so is the repair
shop since the car was entrusted to it. That is why, repair shops are
required to first register with the Department of Trade and Industry (DTI)
and to secure an insurance policy for the shop covering the property
entrusted by its customer for repair, service or maintenance as a pre-
requisite for such registration/accreditation. Violation of this statutory
duty constitutes negligence per se. Having taken custody of the vehicle,
private respondent is obliged not only to repair the vehicle but must also
provide the customer with some form of security for his property over
which he loses immediate control. An owner who cannot exercise the
seven (7) jures or attributes of ownership the right to possess, to use and
enjoy, to abuse or consume, to accessories, to dispose or alienate, to
recover or vindicate and to the fruits - is a crippled owner. Moreover, on
the assumption that private respondents repair business is duly registered,
it presupposes that its shop is covered by insurance from which it may
recover the loss. If private respondent can recover from its insurer, then
it would be unjustly enriched if it will not compensate petitioner to
whom no fault can be attributed.
CIPRIANO vs CA (missing)
SERVANDO v PHIL STEAM [G.R. Nos. L-36481-2. October 23, 1982.]
AMPARO C. SERVANDO, CLARA UY BICO, plaintiffs- appellees, vs.
PHILIPPINE STEAM NAVIGATION CO., defendant-appellant.
FACTS:
Appellees Clara Uy Bico and Amparo Servando loaded their respective
cargoes on board appellant's vessel for carriage from Manila to Negros
Occidental. Upon arrival of the vessel at the place of destination, the
cargoes were discharged, complete and in good order, into the warehouse
of the Bureau of Customs. After appellee Uy Bico had taken delivery of
apportion of her cargoes, the warehouse was rated by fire of unknown
origin, destroying the rest of the two appellees' cargoes. Appellees filed
their claims from appellant for the recovery of the value of the goods
destroyed by fire.
DECISION OF LOWER COURTS:
(1) Trial Court: ruled in favor of appellees and ordered payment of their
claims, stating that since the burning of the warehouse occurred before
actual or constructive delivery of the goods to the appellees, the loss is
chargeable against the appellant.
ISSUE:
Whether Philippine Steam Navigation Co. is liable?
RULING:
No.
Appellant, as obligor, is exempt from liability for non- performance
because the burning of the warehouse containing appellees' goods, which
is the immediate and proximate cause of the loss, is a fortuitous event or
force majeure which could not have been foreseen by appellant.
Where fortuitous event or force majeure is the immediate and proximate
cause of the loss, the obligor is exempt from liability for non- performance.
(See Art. 1174 of the New Civil Code.)
The Partidas(Law II, Title 33, Partida 7), the antecedent of Article 1174 of
the Civil Code, defines "caso fortuito" as "an event that takes place by
accident and could not been have foreseen. Examples of this are
destruction of houses, unexpected fire, shipwreck, violence of robbers."
In the dissertation of the phrase "caso fortuito" the Encyclopedia
Juridicada Española says: "In a legal sense and consequently, also in
relation to contracts, caso fortuito presents the following essential
characteristics:
(1) the cause of the unforseen 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 imposible for the debtor to
fulfill his obligation in a normal manner; and
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(4) the obligor must be free from any participation in the aggravation of
the injury resulting to creditor."
There is nothing in the record to show that appellant carrier incurred in
delay in the performance of its obligation. It appears that appellant had
not only notified appellees of the arrival of their shipment, out had
demanded that the same be withdrawn. In fact, pursuant to such demand,
appellee Uy Bico had taken delivery of 907 cavans of rice before the
burning of the warehouse.
Nor can the appellant or its employees be charged with negligence. The
storage of the goods in the Customs warehouse pending withdrawal
thereof by the appellees was undoubtedly made with their knowledge and
consent. Since the warehouse belonged to and was maintained by the
government, it would be unfair to impute negligence to the appellant, the
latter having no control whatsoever over the same.
The lower court in its decision relied on the ruling laid down in Yu Biao
Sontua vs. Ossorio, 43 Phil. 511, where this Court held the defendant liable
for damages arising from a fire caused by the negligence of the
defendant's employees while loading cases of gasoline and petroleum
products. But unlike in the said case, there is not a shred of proof in the
present case that the cause of the fire that broke out in the Custom's
warehouse was in any way attributable to the negligence of the appellant
or its employees. Under the circumstances, the appellant is plainly not
responsible.
DELSAN TRANSPORT LINES
vs
C&A CONSTRUCTION INC.
OCTOBER 1 2003
FACTS:
C & A construction, construct a deflector wall at the Vitas reclamation Area
in Tondo, Manila it was not formally turnover to National Housing
Authority though it was completed in 1994. On 12:00 midnight of October
20, 1994 Captain Demetrio T. Jusep of M/V Delsan Express receive a
report that that a typhoon was going to hit Manila after eight (8) hours. At
8:35 a.m. he tried to seek shelter but it was already congested. At 10:00
a.m. Capt. Jusep drop the anchor at the vicinity of Vitas mouth, the waves
were already reaching 8 to 10 feet. The ship was dragged by the wind
toward the Napocor power barge Capt. Jusep ordered a full stop of the
vessel to avoid the collision but when the engine was re-started, it hit the
deflector wall constructed by the respondent. P456,198.24 was the
damaged cause by the incident. C & A construction demanded payment of
the damages from Capt. Jusep but the latter refused to pay due to the
cause of the incident was by a fortuitous event. The trial court ruled that
Captain Jusep was not guilty of negligence in applying the “emergency
rule” because it had taken necessary precautions to avoid accident. The
Court of Appeals reversed & set aside the decision of the trial court.
Captain Jusep was found guilty of negligence in transferring the vessel only
at 8:35 a.m. of October 21,1994 and held liable for damages in waiting
until 8:35 a.m. before transfering the vessel to sought shelter.
Issues:
(1) Whether or not Capt. Jusep was negligent.
(2) Whether or not the petitioner is solidarily liable under Art. 2180 of the
Civil Code for Quasi-Delict.
Held:
(1) The court finds Captain Jusep is guilty of negligence, the failure to take
immediate and appropriate action under the circumstances, despite the
knowledge that there is typhoon but he waited for the lapse of eight (8)
hours instead. Captain Jusep showed an inexcusable lack of care and
caution which an ordinary prudent person would have observed in the
same situation. The trial court erred in applying the emergency rule
because the danger where Captain Jusep found himself was caused by his
own negligence.
(2) The court finds the petitioner liable for the negligent act of Capt. Jusep.
Whenever an employee’s negligence causes damage to another, it
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instantly arise a presumption that the employer failed to exercise the care
and diligence of supervision of his employee. In Fabre ,jr. v Court of
Appeals held that due diligence requires consistent compliance of rules &
regulation for the guidance and actual implementation of rules. But the
petitioner fails to give any evidence that its rule are strictly implemented
and monitored in compliance therewith petitioner is therefore liable for
the negligent act of Capt. Jusep. The amount of P 456, 198.27 due earn 6%
interest per annum from October 3, 1995 until the finality of the decision.
SCHMITZ TRANSPORT & BROKERAGE CORPORATION
vs.
TRANSPORT VENTURE, INC., INDUSTRIAL INSURANCE COMPANY, LTD.,
and BLACK SEA SHIPPING AND DODWELL now INCHCAPE SHIPPING
SERVICES
(G.R. No. 150255. April 22, 2005)
FACTS:
SYTCO Pte Ltd. Singapore shipped from Russia on board M/V "Alexander
Saveliev" (a vessel of Russian registry and owned by Black Sea) 545 hot
rolled steel sheets in coil. The cargoes, in favor of the consignee, Little
Giant Steel Pipe Corporation (Little Giant), were insured against all risks
with Industrial Insurance Company Ltd. (Industrial Insurance).
The vessel arrived at the port of Manila on October 24, 1991. Schmitz
Transport, whose services the consignee engaged to deliver them to its
warehouse at Cainta, Rizal, in turn engaged the services of TVI to send a
barge and tugboat at shipside. On October 26, 1991, around 4:30 p.m.,
TVI’s tugboat "Lailani" towed the barge "Erika V" to shipside. At 9:00 p.m.,
arrastre operator Ocean Terminal Services Inc. commenced to unload 37
coils from the vessel unto the barge. By 12:30 a.m. of October 27, during
which the weather condition had become inclement due to an
approaching storm, the unloading unto the barge of the 37 coils was
accomplished. No tugboat pulled the barge back to the pier, however. At
around 5:30 a.m. of October 27, 1991, due to strong waves, the crew of
the barge abandoned it and transferred to the vessel. The barge pitched
and rolled with the waves and eventually capsized, washing the 37 coils
into the sea. At 7:00 a.m., a tugboat finally arrived to pull the already
empty and damaged barge back to the pier.
Little Giant thus filed a formal claim against Industrial Insurance, which
paid it. Industrial Insurance later filed a complaint against Schmitz
Transport, TVI, and Black Sea before the RTC of Manila.
The RTC held all the defendants negligent. All the defendants appealed to
the CA, which, affirmed in toto the decision of the trial court,
ISSUE:
Whether or not the loss of the cargoes was due to a fortuitous event,
independent of any act of negligence on the part of petitioner Black Sea
and TVI
RULING:
No.
When a fortuitous event occurs, Article 1174 of the Civil Code absolves any
party from any and all liability arising therefrom:
ART. 1174. Except in cases expressly specified by the law, or when it is
otherwise declared by stipulation, or when the nature of the obligation
requires the assumption of risk, no person shall be responsible for those
events which could not be foreseen, or which though foreseen, were
inevitable.
In order, to be considered a fortuitous event, however, (1) the cause of the
unforeseen and unexpected occurrence, or the failure of the debtor to
comply with his obligation, must be independent of human will; (2) it must
be impossible to foresee the event which constitute the casofortuito, 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
any manner; and (4) the obligor must be free from any participation in the
aggravation of the injury resulting to the creditor.
That no tugboat towed back the barge to the pier after the cargoes were
completely loaded by 12:30 in the morning is, a material fact which the
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appellate court failed to properly consider and appreciate — the proximate
cause of the loss of the cargoes. Had the barge been towed back promptly
to the pier, the deteriorating sea conditions notwithstanding, the loss
could have been avoided. But the barge was left floating in open sea until
big waves set in at 5:30 a.m., causing it to sink along with the cargoes. The
loss thus falls outside the "act of God doctrine."
The petitioner is a common carrier, for it undertook to transport the
cargoes from the shipside of "M/V Alexander Saveliev" to the consignee’s
warehouse at Cainta, Rizal. As the appellate court put it, "as long as a
person or corporation holds [itself] to the public for the purpose of
transporting goods as [a] business, [it] is already considered a common
carrier regardless if [it] owns the vehicle to be used or has to hire one."
As for petitioner’s argument that being the agent of Little Giant, any
negligence it committed was deemed the negligence of its principal, it does
not persuade. Petitioner was discharging its own personal obligation under
a contact of carriage. Petitioner, which did not have any barge or tugboat,
engaged the services of TVI as handler to provide the barge and the
tugboat. In their Service Contract, while Little Giant was named as the
consignee, petitioner did not disclose that it was acting on commission and
was chartering the vessel for Little Giant. Little Giant did not thus
automatically become a party to the Service Contract and was not,
therefore, bound by the terms and conditions therein.
In the case of TVI, the Court held that it did not exercise reasonable care
and caution which an ordinarily prudent person would have used in the
same situation. TVI’s failure to promptly provide a tugboat did not only
increase the risk that might have been reasonably anticipated during the
shipside operation, but was the proximate cause of the loss.
As for petitioner, for it to be relieved of liability, it should, following Article
1739 of the Civil Code, prove that it exercised due diligence to prevent or
minimize the loss, before, during and after the occurrence of the storm in
order that it may be exempted from liability for the loss of the goods.
While petitioner sent checkers and a supervisor, it failed to summon the
barge or another tugboat to extend help, but it did not.
This Court holds then that petitioner and TVI are solidarily liable for the
loss of the cargoes.
Re liability of Black Sea: Bill of Lading No. 2 covering the shipment
provides that delivery be made "to the port of discharge or so near thereto
as she may safely get, always afloat." The delivery of the goods to the
consignee was not from "pier to pier" but from the shipside of "M/V
Alexander Saveliev" and into barges, for which reason the consignee
contracted the services of petitioner. Since Black Sea had constructively
delivered the cargoes to Little Giant, through petitioner, it had discharged
its duty.
METRO CONCAST STEEL CORPORATION, SPOUSES JOSE S. DYCHIAO AND
TIUOH YAN, SPOUSES GUILLERMO AND MERCEDES DYCHIAO, AND
SPOUSES VICENTE AND FILOMENA DYCHIAO, Petitioners,
vs.
ALLIED BANK CORPORATION, Respondent.
The Facts
On various dates and for different amounts, Metro Concast, a corporation
duly organized and existing under and by virtue of Philippine laws and
engaged in the business of manufacturing steel,5 through its officers,
herein individual petitioners, obtained several loans from Allied Bank.
These loan transactions were covered by a promissory note and separate
letters of credit/trust receipts.
The interest rate under Promissory Note No. 96-21301 was pegged at
15.25% per annum (p.a.), with penalty charge of 3% per month in case of
default; while the twelve (12) trust receipts uniformly provided for an
interest rate of 14% p.a. and 1% penalty charge. By way of security, the
individual petitioners executed several Continuing
Guaranty/Comprehensive Surety Agreements19 in favor of Allied Bank.
Petitioners failed to settle their obligations under the aforementioned
promissory note and trust receipts, hence, Allied Bank, through counsel,
sent them demand letters,seeking payment of the total amount of
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P51,064,093.62, but to no avail. Thus, Allied Bank was prompted to file a
complaint for collection of sum of money (subject complaint) against
petitioners before the RTC. In their second Amended Answer, petitioners
admitted their indebtedness to Allied Bank but denied liability for the
interests and penalties charged, claiming to have paid the total sum of
P65,073,055.73 by way of interest charges for the period covering 1992 to
1997.
They also alleged that the economic reverses suffered by the Philippine
economy in 1998 as well as the devaluation of the peso against the US
dollar contributed greatly to the downfall of the steel industry, directly
affecting the business of Metro Concast and eventually leading to its
cessation. Hence, in order to settle their debts with Allied Bank, petitioners
offered the sale of Metro Concast’s remaining assets, consisting of
machineries and equipment, to Allied Bank, which the latter, however,
refused. Instead, Allied Bank advised them to sell the equipment and apply
the proceeds of the sale to their outstanding obligations. Accordingly,
petitioners offered the equipment for sale, but since there were no takers,
the equipment was reduced into ferro scrap or scrap metal over the years.
In 2002, Peakstar Oil Corporation (Peakstar), represented by one Crisanta
Camiling (Camiling), expressed interest in buying the scrap metal. During
the negotiations with Peakstar, petitioners claimed that Atty. Peter Saw
(Atty. Saw), a member of Allied Bank’s legal department, acted as the
latter’s agent. Eventually, with the alleged conformity of Allied Bank,
through Atty. Saw, a Memorandum of Agreement(MoA) was drawn
between Metro Concast, represented by petitioner Jose Dychiao, and
Peakstar, through Camiling, under which Peakstar obligated itself to
purchase the scrap metal for a total consideration of P34,000,000.00.
Unfortunately, Peakstar reneged on all its obligations under the MoA. In
this regard, petitioners asseverated that:(a) their failure to pay their
outstanding loan obligations to Allied Bank must be considered as force
majeure ; and(b) since Allied Bank was the party that accepted the terms
and conditions of payment proposed by Peakstar, petitioners must
therefore be deemed to have settled their obligations to Allied Bank. To
bolster their defense, petitioner Jose Dychiao (Jose Dychiao) testified
during trial that it was Atty. Saw himself who drafted the MoA and
subsequently received the P2,000,000.00 cash and the two (2) Bankwise
post-dated checks worth P1,000,000.00 each from Camiling. However,
Atty. Saw turned over only the two (2) checks and P1,500,000.00 in cash to
the wife of Jose Dychiao.
Claiming that the subject complaint was falsely and maliciously filed,
petitioners prayed for the award of moral damages in the amount of
P20,000,000.00 in favor of Metro Concast and at least P25,000,000.00 for
each individual petitioner, P25,000,000.00 as exemplary damages,
P1,000,000.00 as attorney’s fees, P500,000.00 for other litigation
expenses, including costs of suit.
The Issue
Whether or not the loan obligations incurred by the petitioners under the
subject promissory note and various trust receipts have already been
extinguished.
The RTC Ruling
Dismissed the subject complaint, holding that the "causes of action sued
upon had been paid or otherwise extinguished." It ruled that since Allied
Bank was duly represented by its agent, Atty. Saw, in all the negotiations
and transactions with Peakstar – considering that Atty. Saw(a) drafted the
MoA,(b) accepted the bank guarantee issued by Bankwise, and(c) was
apprised of developments regarding the sale and disposition of the scrap
metal – then it stands to reason that the MoA between Metro Concast and
Peakstar was binding upon said bank.
The CA Ruling
Reversed and set aside the ruling of the RTC, ratiocinating that there was
"no legal basis in fact and in law to declare that when Bankwise reneged its
guarantee under the [MoA], herein [petitioners] should be deemed to be
discharged from their obligations lawfully incurred in favor of [Allied
Bank]."
The CA granted the appeal and directed petitioners to solidarily pay Allied
Bank their corresponding obligations under the aforementioned
promissory note and trust receipts, plus interests, penalty charges and
attorney’s fees.
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The Court’s Ruling
Article 1231 of the Civil Code states that obligations are extinguished
either by payment or performance, the loss of the thing due, the
condonation or remission of the debt, the confusion or merger of the
rights of creditor and debtor, compensation or novation.
In the present case, petitioners essentially argue that their loan obligations
to Allied Bank had already been extinguished due to Peakstar’s failure to
perform its own obligations to Metro Concast pursuant to the MoA.
Petitioners classify Peakstar’s default as a form of force majeure in the
sense that they have, beyond their control, lost the funds they expected to
have received from the Peakstar (due to the MoA) which they would, in
turn, use to pay their own loan obligations to Allied Bank. They further
state that Allied Bank was equally bound by Metro Concast’s MoA with
Peakstar since its agent, Atty. Saw, actively represented it during the
negotiations and execution of the said agreement. Petitioners’ arguments
are untenable. At the outset, the Court must dispel the notion that the
MoA would have any relevance to the performance of petitioners’
obligations to Allied Bank. The MoA is a sale of assets contract, while
petitioners’ obligations to Allied Bank arose from various loan transactions.
Absent any showing that the terms and conditions of the lattetransactions
have been, in any way, modified or novated by the terms and conditions in
the MoA, said contracts should be treated separately and distinctly from
each other, such that the existence, performance or breach of one would
not depend on the existence, performance or breach of the other. In the
foregoing respect, the issue on whether or not Allied Bank expressed its
conformity to the assets sale transaction between Metro Concast and
Peakstar (as evidenced by the MoA) is actually irrelevant to the issues
related to petitioners’ loan obligations to the bank. Besides, as the CA
pointed out, the fact of Allied Bank’s representation has not been proven
in this case and hence, cannot be deemed as a sustainable defense to
exculpate petitioners from their loan obligations to Allied Bank. Now,
anent petitioners’ reliance on force majeure, suffice it to state that
Peakstar’s breach of its obligations to Metro Concast arising from the MoA
cannot be classified as a fortuitous event under jurisprudential
formulation. As discussed in Sicam v. Jorge:
Fortuitous events by definition are extraordinary events not foreseeable or
avoidable. It is therefore, not enough that the event should not have been
foreseen or anticipated, as is commonly believed but it must be one
impossible to foresee or to avoid. The mere difficulty to foresee the
happening is not impossibility to foresee the same. To constitute a
fortuitous event, the following elements must concur: (a) the cause of the
unforeseen and unexpected occurrence or of the failure of the debtor to
comply with obligations must be independent of human will; (b) it must be
impossible to foresee the event that constitutes the caso fortuito or, if it
can be foreseen, it must be impossible to avoid; (c) the occurrence must be
such as to render it impossible for the debtor to fulfill obligations in a
normal manner; and (d) the obligor must be free from any participation in
the aggravation of the injury or loss.40 (Emphases supplied)
While it may be argued that Peakstar’s breach of the MoA was unforseen
by petitioners, the same us clearly not "impossible"to foresee or even an
event which is independent of human will." Neither has it been shown that
said occurrence rendered it impossible for petitioners to pay their loan
obligations to Allied Bank and thus, negates the former’s force majeure
theory altogether. In any case, as earlier stated, the performance or breach
of the MoA bears no relation to the performance or breach of the subject
loan transactions, they being separate and distinct sources of obligations.
The fact of the matter is that petitioners’ loan obligations to Allied Bank
remain subsisting for the basic reason that the former has not been able to
prove that the same had already been paid41 or, in any way, extinguished.
In this regard, petitioners’ liability, as adjudged by the CA, must perforce
stand. Considering, however, that Allied Bank’s extra-judicial demand on
petitioners appears to have been made only on December 10, 1998, the
computation of the applicable interests and penalty charges should be
reckoned only from such date.
WHEREFORE, the petition is DENIED. The Decision dated February 12, 2007
and Resolution dated May 10, 2007 of the Court of Appeals in CA-G.R. CV
No. 86896 are hereby AFFIRMED with MODIFICATION reckoning the
applicable interests and penalty charges from the date of the extrajudicial
demand or on December 10, 1998. The rest of the appellate court’s
dispositions stand.
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4.5. Emergency and Sudden Peril Doctrine
McKee vs IAC
Facts:
Two boys suddenly darted before Jose Koh’s car forcing him to swerve the
car to avoid hitting the boys and entered into the opposite lane. His car
collided with the approaching cargo truck in the opposite lane. . The
collision resulted in the deaths of Jose Koh, Kim Koh McKee and Loida
Bondoc, and physical injuries to George Koh McKee, Christopher Koh
McKee and Araceli Koh McKee. Jose Koh was the father of petitioner
Araceli Koh McKee, the mother of minors George, Christopher and Kim Koh
McKee.
ISSUE:
WON Jose Koh was negligent
RULING:
No. Any reasonable and ordinary prudent man would have tried to avoid
running over the two boys by swerving the car away from where they were
even if this would mean entering the opposite lane. Avoiding such
immediate peril would be the natural course to take particularly where the
vehicle in the opposite lane would be several meters away and could very
well slow down, move to the side of the road and give way to the
oncoming car. Moreover, under what is known as the emergency rule,
"one who suddenly finds himself in a place of danger, and is required to act
without time to consider the best means that may be adopted to avoid the
impending danger, is not guilty of negligence, if he fails to adopt what
subsequently and upon reflection may appear to have been a better
method, unless the emergency in which he finds himself is brought about
by his own negligence."
Considering the sudden intrusion of the two (2) boys into the lane of the
car, Jose Koh adopted the best means possible in the given situation to
avoid hitting them. Applying the above test, therefore, it is clear that he
was not guilty of negligence.
4.6. Due Diligence in the Selection and Supervision of Employees
SPOUSES CUSTODIO v. CA GR No.116100
original plaintiff Pacifico Mabasa died during the pendency of this case and
was substituted by Ofelia Mabasa, his surviving spouse [and children].
(RESPONDENTS IN THIS CASE)
The plaintiffs prayed for the grant of an easement of right of way was filed
by Pacifico Mabasa against Cristino Custodio, Brigida R. Custodio, Rosalina
R. Morato, Lito Santos and Maria Cristina C. Santos
Facts:
The plaintiff owns a parcel of land with a two-door apartment erected
thereon situated at Interior P. Burgos St., Palingon, Tipas, Taguig, Metro
Manila. The plaintiff was able to acquire said property through a contract
of sale with spouses Mamerto Rayos and Teodora Quintero as vendors last
September 1981. Said property may be described to be surrounded by
other immovables pertaining to defendants herein. Taking P. Burgos
Street as the point of reference, on the left side, going to plaintiffs
property, the row of houses will be as follows: That of defendants Cristino
and Brigido Custodio, then that of Lito and Maria Cristina Santos and then
that of Ofelia Mabasa. On the right side (is) that of defendant Rosalina
Morato and then a Septic Tank (Exhibit D). As an access to P. Burgos
Street from plaintiffs property, there are two possible passageways. The
first passageway is approximately one meter wide and is about 20 meters
distan(t) from Mabasas residence to P. Burgos Street. Such path is
passing in between the previously mentioned row of houses. The second
passageway is about 3 meters in width and length from plaintiff Mabasas
residence to P. Burgos Street; it is about 26 meters. In passing thru said
passageway, a less than a meter wide path through the septic tank and
with 5-6 meters in length has to be traversed.
When said property was purchased by Mabasa, there were tenants
occupying the premises and who were acknowledged by plaintiff Mabasa
as tenants. However, sometime in February, 1982. one of said tenants
vacated the apartment and when plaintiff Mabasa went to see the
premises, he saw that there had been built an adobe fence in the first
passageway making it narrower in width. Said adobe fence was first
constructed by defendants Santoses along their property which is also
along the first passageway. Defendant Morato constructed her adobe
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fence and even extended said fence in such a way that the entire
passageway was enclosed. And it was then that the remaining tenants of
said apartment vacated the area. Defendant Ma. Cristina Santos testified
that she constructed said fence because there was an incident when her
daughter was dragged by a bicycle pedalled by a son of one of the tenants
in said apartment along the first passageway. She also mentioned some
other inconveniences of having (at) the front of her house a pathway such
as when some of the tenants were drunk and would bang their doors and
windows. Some of their footwear were even lost. x x x
RTC: Ordred to give plaintiff permanent access - ingress and egress, to the
public street.
Ordered defendants to pay (P8,000) as indemnity for the permanent use of
the passageway.
CA: Same (modified AFFIRMED WITH MODIFICATION only insofar as the
herein grant of damages to plaintiffs-appellants. The Court hereby orders
defendants-appellees to pay plaintiffs-appellants the sum of Sixty Five
Thousand (P65,000) Pesos as Actual Damages, Thirty Thousand (P30,000)
Pesos as Moral Damages, and Ten Thousand (P10,000) Pesos as
Exemplary Damages. The rest of the appealed decision is affirmed to all
respects.
Defendants now present the following issues
ISSUE:
1. WON the grant of the right of way was proper (FAILED TO APPEAL
THIS ISSUE WITH CA..CANNOT RAISE THIS IN SC)
2. WON the grant of damages was in order.
HELD:
No. CA erred in granting the award of damages in factor of plaintiffs. The
award of damages has no substantial legal basis. A reading of the decision
of the Court of Appeals will show that the award of damages was based
solely on the fact that the original plaintiff, Pacifico Mabasa, incurred
losses in the form of unrealized rentals when the tenants vacated the
leased premises by reason of the closure of the passageway.
However, the mere fact that the plaintiff suffered losses does not give rise
to a right to recover damages. To warrant the recovery of damages, there
must be both a right of action for a legal wrong inflicted by the defendant,
and damage resulting to the plaintiff therefrom. Wrong without damage,
or damage without wrong, does not constitute a cause of action, since
damages are merely part of the remedy allowed for the injury caused by a
breach or wrong.
There is a material distinction between damages and injury. Injury is the
illegal invasion of a legal right; damage is the loss, hurt, or harm which
results from the injury; and damages are the recompense or compensation
awarded for the damage suffered. Thus, there can be damage without
injury in those instances in which the loss or harm was not the result of a
violation of a legal duty. These situations are often called damnum absque
injuria.[9] in order that a plaintiff may maintain an action for the injuries of
which he complains, he must establish that such injuries resulted from a
breach of duty which the defendant owed to the plaintiff - a concurrence
of injury to the plaintiff and legal responsibility by the person causing
it.[10] The underlying basis for the award of tort damages is the premise
that an individual was injured in contemplation of law. Thus, there must
first be the breach of some duty and the imposition of liability for that
breach before damages may be awarded; it is not sufficient to state that
there should be tort liability merely because the plaintiff suffered some
pain and suffering)
Many accidents occur and many injuries are inflicted by acts or omissions
which cause damage or loss to another but which violate no legal duty to
such other person, and consequently create no cause of action in his favor.
In such cases, the consequences must be borne by the injured person
alone. The law affords no remedy for damages resulting from an act which
does not amount to a legal injury or wrong.
In other words, in order that the law will give redress for an act causing
damage, that act must be not only hurtful, but wrongful. There must
be damnum et injuria.[13] If, as may happen in many cases, a person
sustains actual damage, that is, harm or loss to his person or property,
without sustaining any legal injury, that is, an act or omission which the
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law does not deem an injury, the damage is regarded as damnum absque
injuria.[14]
In the case at bar, although there was damage, there was no legal injury.
Contrary to the claim of private respondents, petitioners could not be said
to have violated the principle of abuse of right. In order that the principle
of abuse of right provided in Article 21 of the Civil Code can be applied, it is
essential that the following requisites concur: (1) The defendant should
have acted in a manner that is contrary to morals, good customs or public
policy; (2) The acts should be willful; and (3) There was damage or injury to
the plaintiff.[15]
The act of petitioners in constructing a fence within their lot is a valid
exercise of their right as owners, hence not contrary to morals, good
customs or public policy. The law recognizes in the owner the right to
enjoy and dispose of a thing, without other limitations than those
established by law.[16] It is within the right of petitioners, as owners, to
enclose and fence their property. Article 430 of the Civil Code provides
that (e)very owner may enclose or fence his land or tenements by means
of walls, ditches, live or dead hedges, or by any other means without
detriment to servitudes constituted thereon.
At the time of the construction of the fence, the lot was not subject to any
servitudes. There was no easement of way existing in favor of private
respondents, either by law or by contract. The fact that private
respondents had no existing right over the said passageway is confirmed
by the very decision of the trial court granting a compulsory right of way in
their favor after payment of just compensation. It was only that decision
which gave private respondents the right to use the said passageway after
payment of the compensation and imposed a corresponding duty on
petitioners not to interfere in the exercise of said right.
Hence, prior to said decision, petitioners had an absolute right over their
property and their act of fencing and enclosing the same was an act which
they may lawfully perform in the employment and exercise of said right. To
repeat, whatever injury or damage may have been sustained by private
respondents by reason of the rightful use of the said land by petitioners
is damnum absque injuria.[17]
A person has a right to the natural use and enjoyment of his own property,
according to his pleasure, for all the purposes to which such property is
usually applied. As a general rule, therefore, there is no cause of action for
acts done by one person upon his own property in a lawful and proper
manner, although such acts incidentally cause damage or an unavoidable
loss to another, as such damage or loss is damnum absque injuria.[18] When
the owner of property makes use thereof in the general and ordinary
manner in which the property is used, such as fencing or enclosing the
same as in this case, nobody can complain of having been injured, because
the inconvenience arising from said use can be considered as a mere
consequence of community life.
The proper exercise of a lawful right cannot constitute a legal wrong for
which an action will lie,[20] although the act may result in damage to
another, for no legal right has been invaded[21] One may use any lawful
means to accomplish a lawful purpose and though the means adopted may
cause damage to another, no cause of action arises in the latters favor. Any
injury or damage occasioned thereby is damnum absque injuria. The courts
can give no redress for hardship to an individual resulting from action
reasonably calculated to achieve a lawful end by lawful means.
CABARDO v. CA
FACTS:
Jose Peralta was a driver of the Consolidated Industrial Gases Incorporated
(CIGI). On October 26, 1987, while driving the companys truck-tanker
bearing Plate No. NBG-925 on the southbound lane of the South Luzon
Expressway, on his way back to the CIGI office in Santa Rosa, Laguna, he
met an accident. Peralta claimed that when the truck-tanker reached
Barangay San Francisco, Bian, Laguna, a Volkswagen car suddenly took the
inner lane occupied by his truck, as a result of which he was forced to
swerve to the left. This caused the truck-tanker to veer and roll over the
center island of the expressway until it fell on its right side, lying
perpendicular to the expressway with its underside facing the
north.[2] With him at the time of the accident was petitioner Fidel Cabardo
who was his helper and pump operator.
Moments later, private respondent Juanito Rodil came along in a Toyota
Corolla car, bearing Plate No. DAU-124, also southbound, on the inner lane
DAY NINE

of the highway. There was a heavy rain which affected visibility along the
highway. Rodil claimed that upon seeing the disabled vehicle on the center
island, he immediately stepped on his brakes, causing his car to swerve to
the left and slide sideways towards the truck-tanker, stopping only after it
had crashed into the underside of the truck-tanker. With private
respondent was his wife Leveminda.
Private respondent and his wife were injured. The truck-tanker driver, Jose
Peralta, was unhurt but his helper, petitioner Cabardo, suffered a fractured
left leg. He and the Rodil spouses were taken to the hospital by passing
emotorists.
the RTC of Santa Cruz, Laguna rendered judgment finding CIGI and Peralta
guilty of negligence, even as it held private respondent Juanito Rodil guilty
of contributory negligence.( WHEREFORE, and in view of all the foregoing
consideration, judgment is hereby rendered for the plaintiffs and against
the defendants, with the latters liability being mitigated by the contributory
negligence of plaintiff driver, and orders the defendants, to pay plaintiffs,
jointly and severally)

Petitioner Fidel Cabardo and the truck driver Jose Peralta gave their
respective statements. On the basis of which, a criminal case for Reckless
Imprudence resulting in Serious Physical Injuries was filed by the Bian INP
police against private respondent Juanito Rodil (respondent).

Thereafter, the Rodils filed a complaint for damages against CIGI and truck
driver Jose Peralta.

On the other hand, petitioner Cabardo filed a complaint for damages

against private respondent Juanito Rodil. In his complaint, petitioner
claimed that he and Peralta were able to get out of the vehicle unhurt after
the truck tanker fell on its right side in the middle portion of the center
island of the [South Luzon] Expressway;[12] that, as he was about to put up
the early warning device, however, private respondent, driving a Toyota
Corolla in a reckless and negligent manner. . . , bumped the truck-tanker
and hit [him] on his left leg, causing him to be thrown off balance and lose
consciousness and that as a result, he suffered a fractured left leg and
other injuries.

In his answer, private respondent denied having caused petitioners injury.

He alleged that the same was sustained when the truck-tanker, driven by
Jose Peralta, fell on its side. He contended that petitioners action was
barred by Civil Case No. SC-2559, then pending in the RTC of Santa Cruz,
Laguna, which he had filed against CIGI and Jose Peralta.