G.R. No.
L-7760 October 1, 1914 The trial court held that both parties were negligent, but that the
E. M. WRIGHT, plaintiff-appellant,
vs.
MANILA ELECTRIC R.R. & LIGHT CO., defendant-appellant.
W. A. Kincaid, Thomas L. Hartigan, and Jose Robles Lahesa for plaintiff.
Bruce, Lawrence, Ross & Block for defendant.
MORELAND, J.:
This is an action brought to recover damages for injuries sustained in
an accident which occurred in Caloocan on the night of August 8,
1909.
The defendant is a corporation engaged in operating an electric street
railway in the city of Manila and its suburbs, including the
municipality of Caloocan. The plaintiff's residence in Caloocan fronts
on the street along which defendant's tracks run, so that to enter his
premises from the street plaintiff is obliged to cross defendant's
tracks. On the night mentioned plaintiff drove home in a calesa and in
crossing the tracks to enter his premises the horse stumbled, leaped
forward, and fell, causing the vehicle with the rails, resulting in a
sudden stop, threw plaintiff from the vehicle and caused the injuries
complained of.
It is undisputed that at the point where plaintiff crossed the tracks on
the night in question not only the rails were above-ground, but that
the ties upon which the rails rested projected from one-third to one-
half of their depth out of the ground, thus making the tops of the rails
some 5 or 6 inches or more above the level of the street.
It is admitted that the defendant was negligent in maintaining its
tracks as described, but it is contended that the plaintiff was also
negligent in that he was intoxicated to such an extent at the time of
the accident that he was unable to take care of himself properly and
that such intoxication was the primary cause of the accident.
plaintiff's negligence was not as great as defendant's and under the
authority of the case of Rakes vs. A. G. & P. Co. (7 Phil. Rep., 359)
apportioned the damages and awarded plaintiff a judgment of P1,000.
The question before us is stated by the defendant thus: "Accepting the
findings of the trial court that both plaintiff and defendant were guilty
of negligence, the only question to be considered is whether the
negligence of plaintiff contributed t the 'principal occurrence' or 'only
to his own injury.' If the former, he cannot recover; if the latter, the
trial court was correct in apportioning the damages."
The questioned as stated by plaintiff is as follows: "The main question
at issue is whether or not the plaintiff was negligent, and, if so, to
what extent. If the negligence of the plaintiff was the primary cause of
the accident then, of course, he cannot recover; if his negligence had
nothing to do with the accident but contributed to his injury, then the
court was right in apportioning the damages, but if there was no
negligence on the part of the plaintiff, then he should be awarded
damages adequates to the injury sustained."
In support of the defendant's contention counsel says: "Defendant's
negligence was its failure properly to maintain the track; plaintiff's
negligence was his intoxication; the 'principal occurrence' was
plaintiff's fall from his calesa. It seems clear that plaintiff's intoxication
contributed to the fall; if he had been sober, it can hardly be doubted
that he would have crossed the track safely, as he had done a hundred
times before."
While both parties appealed from the decision, the defendant on the
ground that it was not liable and the plaintiff on the ground that the
damages were insufficient according to the evidence, and while the
plaintiff made a motion for a new trial upon the statutory grounds
and took proper exception to the denial thereof, thus conferring upon
this court jurisdiction to determine the question of fact, nevertheless,
not all of the testimony taken on the trial, so far as can be gathered
from the record, has been brought to this court. There seems to have
been two hearings, one on the 31st of August and the other on the
28th of September. The evidence taken on the first hearing is here; that
taken on the second is not. Not all the evidence taken on the hearings
being before the court, we must refuse, under our rules, to consider
even that evidence which is here; and, in the decision of this case, we
are, therefore, relegated to the facts stated in the opinion of the court
and the pleadings filed.
A careful reading of the decision of the trial court leads us to the
conclusion that there is nothing in the opinion which sustains the
conclusion of the court that the plaintiff was negligent with reference
to the accident which is the basis of this action. Mere intoxication
establish a want of ordinary care. It is but a circumstance to be
considered with the other evidence tending to prove negligence. It is
the general rule that it is immaterial whether a man is drunk or sober
if no want of ordinary care or prudence can be imputed to him, and
no greater degree of care is required than by a sober one. If one's
conduct is characterized by a proper degree of care and prudence, it is
immaterial whether he is drunk or sober. (Ward vs. Chicago etc., R. R.
Co., 85 Wis., 601; H & T. C. R. Co. vs. Reason, 61 Tex., 613; Alger vs.
Lowell, 3 Allen, Mass., 402; Central R. R. Co. vs. Phinazee, 93 Ga., 488;
Maguire vs. Middlesex R. R. Co., 115 Mass., 239; Meyer vs. Pacific R.
R. Co., 40 Mo., 151., Chicago & N. W. R. R. Co. vs. Drake, 33 Ill. App.,
114.)
If intoxication is not in itself negligence, what are the facts found by
the trial court and stated in its opinion upon which may be predicated
the finding that the plaintiff did not use ordinary care and prudence
and that the intoxication contributed to the injury complained of?
After showing clearly and forcibly the negligence of the defendant in
leaving its tracks in the condition in which they were on the night of
the injury, the court has the following to say, and it is all that can be
found in its opinion, with reference to the negligence of the plaintiff:
"With respect to the condition in which Mr. Wright was on returning
to his house on the night in question, the testimony of Doctor
Kneedler, who was the physician who attended him an hour after the
accident, demonstrates that he was intoxicated. . . . .
If the defendant or its employees were negligent by reason of
having left the rails and a part of the ties uncovered in a street
where there is a large amount of travel, the plaintiff was no
less negligent, he not having abstained from his custom of
taking more wine than he could carry without disturbing his
judgment and his self-control, he knowing that he had to drive
a horse and wagon and to cross railroad tracks which were to
a certain extent dangerous by reason of the rails being elevated
above the level of the street.
If the plaintiff had been prudent on the night in question and
had not attempted to drive his conveyance while in a drunken
condition, he would certainly have avoided the damages
which he received, although the company, on its part, was
negligent in maintaining its tracks in a bad condition for
travel.
Both parties, therefore, were negligent and both contributed to
the damages resulting to the plaintiff, although the plaintiff, in
the judgment of the court, contributed in greater proportion to
the damages that did the defendant.
As is clear from reading the opinion, no facts are stated therein which
warrant the conclusion that the plaintiff was negligent. The
conclusion that if he had been sober he would not have been injured
is not warranted by the facts as found. It is impossible to say that a
sober man would not have fallen from the vehicle under the
conditions described. A horse crossing the railroad tracks with not
only the rails but a portion of the ties themselves aboveground,
stumbling by reason of the unsure footing and falling, the vehicle
crashing against the rails with such force as to break a wheel, this
might be sufficient to throw a person from the vehicle no matter what
his condition; and to conclude that, under such circumstances, a sober
man would not have fallen while a drunken man did, is to draw a
conclusion which enters the realm of speculation and guesswork.
It having been found that the plaintiff was not negligent, it is
unnecessary to discuss the question presented by the appellant
company with reference to the applicability of the case of Rakes vs. A.
G. & P. Co., above; and we do not find facts in the opinion of the court
below which justify a larger verdict than the one found.
Arellano, C.J., Torres and Araullo, JJ., concur.
 [G.R. NO. 161803 : February 4, 2008]
DY TEBAN TRADING, INC., Petitioner, v. JOSE CHING AND/OR
LIBERTY FOREST, INC. and CRESILITO M.
LIMBAGA, Respondents.
DECISION
REYES, R.T., J.:
THE vehicular collision resulting in damages and injuries in this case
could have been avoided if the stalled prime mover with trailer were
parked properly and equipped with an early warning device. It is
high time We sounded the call for strict enforcement of the law and
regulation on traffic and vehicle registration. Panahon na para
mahigpit na ipatupad ang batas at regulasyon sa trapiko at
pagpapatala ng sasakyan.
Before Us is a Petition for Review on Certiorari of the
Decision1 of the
Court of Appeals (CA) modifying that2 of the Regional Trial Court
(RTC) in Butuan City finding private respondents Liberty Forest, Inc.
and Cresilito Limbaga liable to petitioner Dy Teban Trading, Inc. for
damages.
Facts
On July 4, 1995, at around 4:45 a.m., Rogelio Ortiz, with helper Romeo
Catamora, was driving a Nissan van owned by petitioner Dy Teban
Trading, Inc. along the National Highway in Barangay Sumilihon,
Butuan City, going to Surigao City. They were delivering commercial
ice to nearby barangays and municipalities. A Joana Paula passenger
bus was cruising on the opposite lane towards the van. In between the
two vehicles was a parked prime mover with a trailer, owned by
private respondent Liberty Forest, Inc.3
The night before, at around 10:00 p.m., the prime mover with trailer
suffered a tire blowout. The driver, private respondent Cresilito
Limbaga, parked the prime mover askew occupying a substantial
portion of the national highway, on the lane of the passenger bus. He
parked the prime mover with trailer at the shoulder of the road with
the left wheels still on the cemented highway and the right wheels on
the sand and gravel shoulder of the highway.4 The prime mover was
not equipped with triangular, collapsible reflectorized plates, the
early warning device required under Letter of Instruction No. 229. As
substitute, Limbaga placed a banana trunk with leaves on the front
and the rear portion of the prime mover to warn incoming motorists.
It is alleged that Limbaga likewise placed kerosene lighted tin cans on
the front and rear of the trailer.5
To avoid hitting the parked prime mover occupying its lane, the
incoming passenger bus swerved to the right, onto the lane of the
approaching Nissan van. Ortiz saw two bright and glaring headlights
and the approaching passenger bus. He pumped his break slowly,
swerved to the left to avoid the oncoming bus but the van hit the front
of the stationary prime mover. The passenger bus hit the rear of the
prime mover.6
Ortiz and Catamora only suffered minor injuries. The Nissan van,
however, became inoperable as a result of the incident. After the
collision, SPO4 Teofilo Pame conducted an investigation and
submitted a police traffic incident investigation report.7
On October 31, 1995, petitioner Nissan van owner filed a complaint
for damages8 against private respondents prime mover owner and
driver with the RTC in Butuan City. The Joana Paula passenger bus
was not impleaded as defendant in the complaint.
RTC Disposition
On August 7, 2001, the RTC rendered a decision in favor of petitioner
Dy Teban Trading, Inc. with a fallo reading:
WHEREFORE, judgment is hereby rendered directing, ordaining and
ordering:
a) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga pay,
jointly and solidarily, plaintiff Dy Teban Trading, Inc. the amounts
of P279,832.00 as actual and compensatory damages, P30,000.00 as
attorney's fees and P5,000.00 as expenses of litigation;
b) That all money claims of plaintiff Rogelio C. Ortiz are dismissed;
c) That defendant Jose Ching is absolved from any civil liability or the
case against him dismissed;
d) That the counterclaim of all the defendants is dismissed;
andcralawlibrary
e) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga to
pay, jointly and solidarily, the costs.
SO ORDERED.9
The RTC held that the proximate cause of the three-way vehicular
collision was improper parking of the prime mover on the national
highway and the absence of an early warning device on the vehicle,
thus:
The court finds that the proximate cause of the incidents is the
negligence and carelessness attributable to the defendants. When the
trailer being pulled by the prime mover suffered two (2) flat tires at
Sumilihon, the prime mover and trailer were parked haphazardly, as
the right tires of the prime mover were the only ones on the sand and
gravel shoulder of the highway while the left tires and all the tires of
the trailer were on the cemented pavement of the highway, occupying
almost the whole of the right lane on the direction the prime mover
and trailer were traveling. The statement of Limbaga that he could not
park the prime mover and trailer deeper into the sand and gravel
shoulder of the highway to his right because there were banana plants
is contradicted by the picture marked Exhibit "F." The picture shows
that there was ample space on the shoulder. If defendant Limbaga
was careful and prudent enough, he should have the prime mover
and trailer traveled more distance forward so that the bodies of the
prime mover and trailer would be far more on the shoulder rather
than on the cemented highway when they were parked. x x x The
court has some doubts on the statement of witness-driver Limbaga
that there were banana trunks with leaves and lighted tin cans with
crude oil placed 3 strides in front of the prime mover and behind the
trailer because the testimonies of witnesses Rogelio C. Ortiz, driver of
the ice van, Romeo D. Catamora, helper of the ice van, and Police
Traffic Investigator SPO3 Teofilo M. Pame show that there were no
banana trunks with leaves and lighted tin cans at the scene of the
incident. But even assuming that there were banana trunks with
leaves but they were placed close to the prime mover and trailer as
they were placed 3 strides away which to the mind of the court is
equivalent approximately to 3 meters and with this distance,
approaching vehicles would have no sufficient time and space to
make a complete stop, especially if the vehicles are heavy and loaded.
If there were lighted tin cans, it was not explained by the defendants
why the driver, especially driver witness Ortiz, did not see them.
x x x
Defendant Liberty Forest, Inc. did not exercise the diligence of a good
father of a family in managing and running its business. The evidence
on record shows that it failed to provide its prime mover and trailer
with the required "early warning devices" with reflectors and it did
not keep proper maintenance and condition of the prime mover and
the trailer. The circumstances show that the trailer were provided
with wornout tires and with only one (1) piece of spare tire. The
pictures marked Exhibit "3" and "4" show that two (2) flat tires
suffered by the trailer and these two (2) tires were attached to one of
the two (2) I-beams or axles attached to the rear of the trailer which
axle is very near but behind the other axle and with the location of the
2 I-beams, it would have the other I-beam that would have suffered
the flat tires as it has to bear the brunt of weight of the D-8 bulldozer.
The bulldozer was not loaded directly above the two (2) I-beams as 2
I-beams, as a pair, were attached at the far rear end of the trailer.
x x x
However, defendant Jose Ching should be absolved of any liability as
there is no showing that he is the manager or CEO of defendant
Liberty Forest, Inc. Although in the answer, it is admitted that he is an
officer of the defendant corporation, but it is not clarified what kind of
position he is holding, as he could be an officer as one of the members
of the Board of Directors or a cashier and treasurer of the corporation.
Witness Limbaga in his testimony mentioned a certain Boy Ching as
the Manager but it was never clarified whether or not Boy Ching and
defendant Jose Ching is one and the same person.10
Private respondents appealed to the CA.
CA Disposition
On August 28, 2003, the CA reversed the RTC decision, disposing as
follows:
WHEREFORE, premises considered, the decision dated August 7,
2001 of the Regional Trial Court, Branch 2, Butuan City in Civil Case
No. 4360 is hereby PARTLY MODIFIED by absolving the
defendants-appellants/appellees of any liability to plaintiffs-
appellants/appellees by reason of the incident on July 4, 1995.
The dismissal of the case against Jose Ching, the counterclaim of
defendants-appellants/appellees and the money claim of Rogelio
Ortiz STANDS.
SO ORDERED.11
In partly reversing or partly modifying the RTC decision, the CA held
that the proximate cause of the vehicular collision was the failure of
the Nissan van to give way or yield to the right of way of the
passenger bus, thus:
It was stated that the Joana Paula bus in trying to avoid a head-on
collision with the truck, sideswept the parked trailer loaded with
bulldozer.
Evidently, the driver of the Joana Paula bus was aware of the presence
on its lane of the parked trailer with bulldozer. For this reason, it
proceeded to occupy what was left of its lane and part of the opposite
lane. The truck occupying the opposite lane failed to give way or yield
the right of way to the oncoming bus by proceeding with the same
speed. The two vehicles were, in effect, trying to beat each other in
occupying a single lane. The bus was the first to occupy the said lane
but upon realizing that the truck refused to give way or yield the right
of way, the bus, as a precaution, geared to its right where the trailer
was parked. Unfortunately, the bus miscalculated its distance from
the parked trailer and its rear right side hit the protruding blade of the
bulldozer then on the top of the parked trailer. The impact of the
collision on its right rear side with the blade of the bulldozer threw
the bus further to the opposite lane, landing its rear portion on the
shoulder of the opposite lane.
x x x
Facts of the case reveal that when Ortiz, the driver of the truck, failed
to give the Joana Paula bus the space on the road it needed, the latter
vehicle scraped its rear right side on the protruded bulldozer blade
and the impact threw the bus directly on the path of the oncoming
truck. This made plaintiffs-appellants/appellees conclude that the
Joana Paula bus occupied its lane which forced Ortiz, the driver of the
truck, to swerve to its left and ram the front of the parked trailer.
x x x
The trailer was parked because its two (2) rear-left tires were blown
out. With a bulldozer on top of the trailer and two (2) busted tires, it
would be dangerous and quite impossible for the trailer to further
park on the graveled shoulder of the road. To do so will cause the flat
car to tilt and may cause the bulldozer to fall from where it was
mounted. In fact, it appeared that the driver of the trailer tried its best
to park on the graveled shoulder since the right-front tires were on
the graveled shoulder of the road.
The lower court erred in stating that the Joana Paula bus swerved to
the left of the truck because it did not see the parked trailer due to
lack of warning sign of danger of any kind that can be seen from a
distance. The damage suffered by the Joana Paula bus belied this
assessment. As stated before, the Joana Paula bus, with the intention
of passing first which it did, first approached the space beside the
parked trailer, veered too close to the parked trailer thereby hitting its
rear right side on the protruding bulldozer blade. Since the damage
was on the rear right most of the bus, it was clearly on the space
which was wide enough for a single passing vehicle but not sufficient
for two (2) passing vehicles. The bus was thrown right to the path of
the truck by the impact of the collision of its rear right side with the
bulldozer blade.12
The CA disagreed with the RTC that the prime mover did not have an
early warning device. The appellate court accepted the claim of
private respondent that Limbaga placed kerosene lighted tin cans on
the front and rear of the trailer which, in Baliwag Transit, Inc. v. Court
of Appeals,13 may act as substitute early warning device. The CA
stated:
Likewise, it was incorrect for the lower court to state that there was no
warning sign of danger of any kind, most probably referring to the
absence of the triangular reflectorized plates. The police sketch clearly
indicated the stack of banana leaves placed at the rear of the parked
trailer. The trailer's driver testified that they placed kerosene lighted
tin can at the back of the parked trailer.
A pair of triangular reflectorized plates is not the only early warning
device allowed by law. The Supreme Court (in Baliwag Transit, Inc. v.
Court of Appeals) held that:
"x x x Col. Dela Cruz and Romano testified that they did not see any
early warning device at the scene of the accident. They were referring
to the triangular reflectorized plates in red and yellow issued by the
Land Transportation Office. However, the evidence shows that
Recontique and Ecala placed a kerosene lamp or torch at the edge of
the road, near the rear portion of the truck to serve as an early
warning device. This substantially complies with Section 34(g) of the
Land Transportation and Traffic Code x x x
Baliwag's argument that the kerosene lamp or torch does not
substantially comply with the law is untenable. The aforequoted law
clearly allows the use not only of an early warning device of the
triangular reflectorized plates' variety but also parking lights or flares
visible one hundred meters away. x x x."
This Court holds that the defendants-appellants/appellees were not
negligent in parking the trailer on the scene of the accident. It would
have been different if there was only one flat tire and defendant-
appellant/appellee Limbaga failed to change the same and left
immediately.
As such, defendants-appellants/appellees are not liable for the
damages suffered by plaintiffs-appellants/appellees. Whatever
damage plaintiffs-appellants/appellees suffered, they alone must bear
them.14
Issues
Petitioner raises two issues15 for Our consideration, to wit:
I.
THE HONORABLE COURT OF APPEALS, WITHOUT ANY
AVAILABLE CONCRETE EVIDENCE, ERRONEOUSLY
DETERMINED THAT THERE WERE EARLY WARNING DEVICES
PLACED IN FRONT OF THE DEFENDANT-
APPELLANTS/APPELLEES' TRUCK AND FLAT CAR TO WARN
PLAINTIFF-APPELLANT/APPELLEE ROGELIO ORTIZ OF THEIR
PRESENCE.
II.
WITH DUE RESPECT, IT IS HIGH TIME TO ENFORCE THE LAW
ON EARLY WARNING DEVICES IN THE PUBLIC INTEREST.
Our Ruling
The petition is meritorious.
The meat of the petition is whether or not the prime mover is liable
for the damages suffered by the Nissan van. The RTC ruled in the
affirmative holding that the proximate cause of the vehicular collision
was the negligence of Limbaga in parking the prime mover on the
national highway without an early warning device on the vehicle. The
CA reversed the RTC decision, holding that the proximate cause of
the collision was the negligence of Ortiz in not yielding to the right of
way of the passenger bus.
Article 2176 of the Civil Code provides that whoever by act or
omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there
is no pre-existing contractual relation between the parties, is called
a quasi-delict. To sustain a claim based on quasi-delict, the following
requisites must concur: (a) damage suffered by plaintiff; (b) fault or
negligence of defendant; and (c) connection of cause and effect
between the fault or negligence of defendant and the damage
incurred by plaintiff.16
There is no dispute that the Nissan van suffered damage. That is
borne by the records and conceded by the parties. The outstanding
issues are negligence and proximate cause. Tersely put, the twin
issues are: (a) whether or not prime mover driver Limbaga was
negligent in parking the vehicle; and (b) whether or not his negligence
was the proximate cause of the damage to the Nissan van.
Limbaga was negligent in parking the prime mover on the national
highway; he failed to prevent or minimize the risk to oncoming
motorists.
Negligence is defined as the failure to observe for the protection of the
interests of another person that degree of care, precaution, and
vigilance which the circumstances justly demand, whereby such other
person suffers injury.17 The Supreme Court stated the test of
negligence in the landmark case Picart v. Smith18 as follows:
The test by which to determine the existence or negligence in a
particular case may be stated as follows: Did the defendant in doing
the alleged negligent act use that reasonable care and caution which
an ordinary person would have used in the same situation? If not,
then he is guilty of negligence. The law here in effect adopts the
standard supposed to be supplied by the imaginary conduct of the
discreet paterfamilias of the Roman law. The existence of negligence
in a given case is not determined by reference to the personal
judgment of the actor in the situation before him. The law considers
what would be reckless, blameworthy, or negligent in the man of
ordinary intelligence and prudence and determines liability by that.
(Underscoring supplied)cralawlibrary
The test of negligence is objective. We measure the act or omission of
the tortfeasor with that of an ordinary reasonable person in the same
situation. The test, as applied to this case, is whether Limbaga, in
parking the prime mover, used that reasonable care and caution
which an ordinary reasonable person would have used in the same
situation.
We find that Limbaga was utterly negligent in parking the prime
mover askew on the right side of the national highway. The vehicle
occupied a substantial portion of the national road on the lane of the
passenger bus. It was parked at the shoulder of the road with its left
wheels still on the cemented highway and the right wheels on the
sand and gravel shoulder of the highway. It is common sense that the
skewed parking of the prime mover on the national road posed a
serious risk to oncoming motorists. It was incumbent upon Limbaga
to take some measures to prevent that risk, or at least minimize it.
We are unable to agree with the CA conclusion "it would have been
dangerous and quite impossible to further park the prime mover on
the graveled shoulder of the road because the prime mover may tilt
and the bulldozer may fall off." The photographs taken after the
incident show that it could have been possible for Limbaga to park
the prime mover completely on the shoulder of the national road
without risk to oncoming motorists. We agree with the RTC
observation on this point, thus:
x x x The statement of Limbaga that he could not park the prime
mover and trailer deeper into the sand and gravel shoulder of the
highway to his right because there were banana plants is contradicted
by the picture marked Exhibit "F." The picture shows that there was
ample space on the shoulder. If defendant Limbaga was careful and
prudent enough, he should have the prime mover and trailer traveled
more distance forward so that the bodies of the prime mover and
trailer would be far more on the shoulder rather than on the cemented
highway when they were parked. Although at the time of the
incident, it was about 4:45 in the morning and it was drizzling but
there is showing that it was pitch dark that whoever travels along the
highway must be extra careful. If the Joana Paula bus swerved to the
lane on which the "Nissan" ice van was properly traveling, as
prescribed by Traffic Rules and Regulations, it is because the driver of
the bus did not see at a distance the parked prime mover and trailer
on the bus' proper lane because there was no warning signs of danger
of any kind that can be seen from a distance.19
Limbaga also failed to take proper steps to minimize the risk posed by
the improperly parked prime mover. He did not immediately inform
his employer, private respondent Liberty Forest, Inc., that the prime
mover suffered two tire blowouts and that he could not have them
fixed because he had only one spare tire. Instead of calling for help,
Limbaga took it upon himself to simply place banana leaves on the
front and rear of the prime mover to serve as warning to oncoming
motorists. Worse, Limbaga slept on the prime mover instead of
standing guard beside the vehicle. By his own account, Limbaga was
sleeping on the prime mover at the time of the collision and that he
was only awakened by the impact of the Nissan van and the
passenger bus on the prime mover.20
Limbaga also admitted on cross-examination that it was his first time
to drive the prime mover with trailer loaded with a D-8 caterpillar
bulldozer.21 We find that private respondent Liberty Forest, Inc. was
utterly negligent in allowing a novice driver, like Limbaga, to operate
a vehicle, such as a truck loaded with a bulldozer, which required
highly specialized driving skills. Respondent employer clearly failed
to properly supervise Limbaga in driving the prime mover.
The RTC noted that private respondent Liberty Forest, Inc. also failed
to keep the prime mover in proper condition at the time of the
collision. The prime mover had worn out tires. It was only equipped
with one spare tire. It was for this reason that Limbaga was unable to
change the two blown out tires because he had only one spare. The
bulldozer was not even loaded properly on the prime mover, which
caused the tire blowouts.
All told, We agree with the RTC that private respondent Limbaga was
negligent in parking the prime mover on the national highway.
Private respondent Liberty Forest, Inc. was also negligent in failing to
supervise Limbaga and in ensuring that the prime mover was in
proper condition.
The case of Baliwag Transit, Inc. v. Court of Appeals is inapplicable;
Limbaga did not put lighted kerosene tin cans on the front and rear of
the prime mover.
Anent the absence of an early warning device on the prime mover, the
CA erred in accepting the bare testimony of Limbaga that he placed
kerosene lighted tin cans on the front and rear of the prime mover.
The evidence on records belies such claim. The CA reliance on Baliwag
Transit, Inc. v. Court of Appeals22 as authority for the proposition that
kerosene lighted tin cans may act as substitute early warning device is
misplaced.
First, the traffic incident report did not mention any lighted tin cans
on the prime mover or within the immediate vicinity of the accident.
Only banana leaves were placed on the prime mover. The report
reads:
VIII - RESULT OF INVESTIGATION: A Joana Pa_ula Bus, with Body
No. 7788, with Plate No. LVA-137, driven by one Temestocles Relova v.
Antero, of legal age, married and a resident of San Roque, Kitcharao,
Agusan del Norte, while traveling along the National Highway,
coming from the east going to the west direction, as it moves along
the way and upon reaching Brgy. Sumilihon, Butuan City to evade
bumping to the approaching Nissan Ice Van with Plate No. PNT-247,
driven by one Rogelio Cortez y Ceneza. As the result, the Joana Paula
Bus accidentally busideswept (sic) to the parked Prime Mover with
Trailer loaded with Bulldozer without early warning device, instead
placing only dry banana leaves three (3) meters at the rear portion of
the Trailer, while failure to place at the front portion, and the said
vehicle occupied the whole lane. As the result, the Joana Paula Bus hit
to the left edge blade of the Bulldozer. Thus, causing the said bus
swept to the narrow shouldering, removing the rear four (4) wheels
including the differential and injuring the above-stated twelve (12)
passengers and damaged to the right side fender above the rear
wheel. Thus, causing damage on it. While the Nissan Ice Van in
evading, accidentally swerved to the left lane and accidentally
bumped to the front bumper of the parked Prime Mover with Trailer
loaded with Bulldozer. Thus, causing heavy damage to said Nissan
Ice Van including the cargoes of the said van.23
Second, SPO4 Pame, who investigated the collision, testified24 that
only banana leaves were placed on the front and rear of the prime
mover. He did not see any lighted tin cans in the immediate vicinity
of the collision.
Third, the claim of Limbaga that he placed lighted tin cans on the
front and rear of the prime mover belatedly surfaced only during his
direct examination. No allegation to this effect was made by private
respondents in their Answer to the complaint for damages.
Petitioner's counsel promptly objected to the testimony of Limbaga,
thus:
ATTY. ROSALES:
Q. Now you mentioned about placing some word signs in front and
at the rear of the prime mover with trailer, will you please describe to
us what this word signs are?cralawred
A. We placed a piece of cloth on tin cans and filled them with crude
oil. And these tin cans were lighted and they are like torches. These
two lights or torches were placed in front and at the rear side of the
prime mover with trailer. After each torch, we placed banana trunk.
The banana trunk is placed between the two (2) torches and the prime
mover, both on the rear and on the front portion of the prime mover.
Q. How far was the lighted tin cans with wick placed in front of the
prime mover.
ATTY. ASIS:
At this point, we will be objecting to questions particularly referring
to the alleged tin cans as some of the warning-sign devices,
considering that there is no allegation to that effect in the answer of
the defendants. The answer was just limited to the numbers 4 & 5 of
the answer. And, therefore, if we follow the rule of the binding effect
of an allegation in the complaint, then the party will not be allowed to
introduce evidence to attack jointly or rather the same, paragraph 5
states, warning device consisting of 3 banana trunks, banana items
and leaves were filed. He can be cross-examined in the point, Your
Honor.
COURT:
Q. Put that on record that as far as this tin cans are concerned, the
plaintiffs are interposing continuing objections. But the Court will
allow the question.25
We thus agree with the RTC that Limbaga did not place lighted tin
cans on the front and rear of the prime mover. We give more credence
to the traffic incident report and the testimony of SPO4 Pame that
only banana leaves were placed on the vehicle. Baliwag Transit, Inc. v.
Court of Appeals26 thus finds no application to the case at bar.
The skewed parking of the prime mover was the proximate cause of
the collision.
Proximate cause is defined as that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have
occurred. More comprehensively, proximate cause is that cause acting
first and producing the injury, either immediately or by setting other
events in motion, all constituting a natural and continuous chain of
events, each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the
injury as natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first
event should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that
an injury to some person might probably result therefrom.27
There is no exact mathematical formula to determine proximate cause.
It is based upon mixed considerations of logic, common sense, policy
and precedent.28 Plaintiff must, however, establish a sufficient link
between the act or omission and the damage or injury. That link must
not be remote or far-fetched; otherwise, no liability will attach. The
damage or injury must be a natural and probable result of the act or
omission. In the precedent-setting Vda. de Bataclan v. Medina,29 this
Court discussed the necessary link that must be established between
the act or omission and the damage or injury, viz.:
It may be that ordinarily, when a passenger bus overturns, and pins
down a passenger, merely causing him physical injuries, if through
some event, unexpected and extraordinary, the overturned bus is set
on fire, say, by lightning, or if some highwaymen after looting the
vehicle sets it on fire, and the passenger is burned to death, one might
still contend that the proximate cause of his death was the fire and not
the overturning of the vehicle. But in the present case and under the
circumstances obtaining in the same, we do not hesitate to hold that
the proximate cause of the death of Bataclan was the overturning of
the bus, this for the reason that when the vehicle turned not only on
its side but completely on its back, the leaking of the gasoline from the
tank was not unnatural or unexpected; that the coming of the men
with a lighted torch was in response to the call for help, made not
only by the passengers, but most probably, by the driver and the
conductor themselves, and that because it was very dark (about 2:30
in the morning), the rescuers had to carry a light with them; and
coming as they did from a rural area where lanterns and flashlights
were not available, they had to use a torch, the most handy and
available; and what was more natural than that said rescuers should
innocently approach the overturned vehicle to extend the aid and
effect the rescue requested from them. In other words, the coming of
the men with the torch was to be expected and was natural sequence
of the overturning of the bus, the trapping of some of its passengers'
bus, the trapping of some of its passengers and the call for outside
help.
The ruling in Bataclan has been repeatedly cited in subsequent cases as
authority for the proposition that the damage or injury must be a
natural or probable result of the act or omission. Here, We agree with
the RTC that the damage caused to the Nissan van was a natural and
probable result of the improper parking of the prime mover with
trailer. As discussed, the skewed parking of the prime mover posed a
serious risk to oncoming motorists. Limbaga failed to prevent or
minimize that risk. The skewed parking of the prime mover triggered
the series of events that led to the collision, particularly the swerving
of the passenger bus and the Nissan van.
Private respondents Liberty Forest, Inc. and Limbaga are liable for all
damages that resulted from the skewed parking of the prime mover.
Their liability includes those damages resulting from precautionary
measures taken by other motorist in trying to avoid collision with the
parked prime mover. As We see it, the passenger bus swerved to the
right, onto the lane of the Nissan van, to avoid colliding with the
improperly parked prime mover. The driver of the Nissan van, Ortiz,
reacted swiftly by swerving to the left, onto the lane of the passenger
bus, hitting the parked prime mover. Ortiz obviously would not have
swerved if not for the passenger bus abruptly occupying his van's
lane. The passenger bus, in turn, would not have swerved to the lane
of the Nissan van if not for the prime mover improperly parked on its
lane. The skewed parking is the proximate cause of the damage to the
Nissan van.
In Phoenix Construction, Inc. v. Intermediate Appellate Court,30 this Court
held that a similar vehicular collision was caused by the skewed
parking of a dump truck on the national road, thus:
The conclusion we draw from the factual circumstances outlined
above is that private respondent Dionisio was negligent the night of
the accident. He was hurrying home that night and driving faster than
he should have been. Worse, he extinguished his headlights at or near
the intersection of General Lacuna and General Santos Streets and
thus did not see the dump truck that was parked askew and sticking
out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the
Intermediate Appellate Court that the legal and proximate cause of
the accident and of Dionisio's injuries was the wrongful or negligent
manner in which the dump truck was parked - in other words, the
negligence of petitioner Carbonel. That there was a reasonable
relationship between petitioner Carbonel's negligence on the one
hand and the accident and respondent's injuries on the other hand, is
quite clear. Put in a slightly different manner, the collision of
Dionisio's car with the dump truck was a natural and foreseeable
consequence of the truck driver's negligence.
x x x
We believe, secondly, that the truck driver's negligence far from being
a "passive and static condition" was rather an indispensable and
efficient cause. The collision between the dump truck and the private
respondent's car would in all probability not have occurred had the
dump truck not been parked askew without any warning lights or
reflector devices. The improper parking of the dump truck created an
unreasonable risk of injury for anyone driving down General Lacuna
Street and for having so created this risk, the truck driver must be
held responsible. In our view, Dionisio's negligence, although later in
point of time than the truck driver's negligence and, therefore, closer
to the accident, was not an efficient intervening or independent cause.
What the Petitioner describes as an "intervening cause" was no more
than a foreseeable consequence of the risk created by the negligent
manner in which the truck driver had parked the dump truck. In
other words, the petitioner truck driver owed a duty to private
respondent Dionisio and others similarly situated not to impose upon
them the very risk the truck driver had created. Dionisio's negligence
was not of an independent and overpowering nature as to cut, as it
were, the chain of causation in fact between the improper parking of
the dump truck and the accident, nor to sever the juris vinculum of
liability. x x x (Underscoring supplied)cralawlibrary
We cannot rule on the proportionate or contributory liability of the
passenger bus, if any, because it was not a party to the case; joint
tortfeasors are solidarily liable.
The CA also faults the passenger bus for the vehicular collision. The
appellate court noted that the passenger bus was "aware" of the
presence of the prime mover on its lane, but it still proceeded to
occupy the lane of the Nissan van. The passenger bus also
miscalculated its distance from the prime mover when it hit the
vehicle.
We cannot definitively rule on the proportionate or contributory
liability of the Joana Paula passenger bus vis - à-vis the prime mover
because it was not a party to the complaint for damages. Due process
dictates that the passenger bus must be given an opportunity to
present its own version of events before it can be held liable. Any
contributory or proportionate liability of the passenger bus must be
litigated in a separate action, barring any defense of prescription or
laches. Insofar as petitioner is concerned, the proximate cause of the
collision was the improper parking of the prime mover. It was the
improper parking of the prime mover which set in motion the series
of events that led to the vehicular collision.
Even granting that the passenger bus was at fault, it's fault will not
necessarily absolve private respondents from liability. If at fault, the
passenger bus will be a joint tortfeasor along with private
respondents. The liability of joint tortfeasors is joint and solidary. This
means that petitioner may hold either of them liable for damages
from the collision. In Philippine National Construction Corporation v.
Court of Appeals,31 this Court held:
According to the great weight of authority, where the concurrent or
successive negligent acts or omission of two or more persons,
although acting independently of each other, are, in combination, the
direct and proximate cause of a single injury to a third person and it is
impossible to determine in what proportion each contributed to the
injury, either is responsible for the whole injury, even though his act
alone might not have caused the entire injury, or the same damage
might have resulted from the acts of the other tort-feasor x x x.
In Far Eastern Shipping Company v. Court of Appeals, the Court declared
that the liability of joint tortfeasors is joint and solidary, to wit:
It may be said, as a general rule, that negligence in order to render a
person liable need not be the sole cause of an injury. It is sufficient
that his negligence, concurring with one or more efficient causes other
than plaintiff's, is the proximate cause of the injury. Accordingly,
where several causes combine to produce injuries, a person is not
relieved from liability because he is responsible for only one of them,
it being sufficient that the negligence of the person charged with
injury is an efficient cause without which the injury would not have
resulted to as great an extent, and that such cause is not attributable to
the person injured. It is no defense to one of the concurrent tortfeasors
that the injury would not have resulted from his negligence alone,
without the negligence or wrongful acts of the other concurrent
tortfeasors. Where several causes producing an injury are concurrent
and each is an efficient cause without which the injury would not
have happened, the injury may be attributed to all or any of the
causes and recovery may be had against any or all of the responsible
persons although under the circumstances of the case, it may appear
that one of them was more culpable, and that the duty owed by them
to the injured person was not the same. No actor's negligence ceases
to be a proximate cause merely because it does not exceed the
negligence of other actors. Each wrongdoer is responsible for the
entire result and is liable as though his acts were the sole cause of the
injury.
There is no contribution between joint tortfeasors whose liability is
solidary since both of them are liable for the total damage. Where the
concurrent or successive negligent acts or omissions of two or more
persons, although acting independently, are in combination with the
direct and proximate cause of a single injury to a third person, it is
impossible to determine in what proportion each contributed to the
injury and either of them is responsible for the whole injury. Where
their concurring negligence resulted in injury or damage to a third
party, they become joint tortfeasors and are solidarily liable for the
resulting damage under Article 2194 of the Civil Code. (Underscoring
supplied)cralawlibrary
All told, all the elements of quasi delict have been proven by clear and
convincing evidence. The CA erred in absolving private respondents
from liability for the vehicular collision.
Final Note
It is lamentable that the vehicular collision in this case could have
been easily avoided by following basic traffic rules and
regulations and road safety standards. In hindsight, private
respondent Limbaga could have prevented the three-way vehicular
collision if he had properly parked the prime mover on the shoulder
of the national road. The improper parking of vehicles, most
especially along the national highways, poses a serious and
unnecessary risk to the lives and limbs of other motorists and
passengers. Drivers owe a duty of care to follow basic traffic rules and
regulations and to observe road safety standards. They owe that duty
not only for their own safety, but also for that of other motorists. We
can prevent most vehicular accidents by simply following basic traffic
rules and regulations.
We also note a failure of implementation of basic safety standards,
particularly the law on early warning devices. This applies even more
to trucks and big vehicles, which are prone to mechanical breakdown
on the national highway. The law, as crafted, requires vehicles to be
equipped with triangular reflectorized plates.32 Vehicles without the
required early warning devices are ineligible for registration.33 Vehicle
owners may also be arrested and fined for non-compliance with the
law.34
The Land Transportation Office (LTO) owes a duty to the public to
ensure that all vehicles on the road meet basic and minimum safety
features, including that of early warning devices. It is most
unfortunate that We still see dilapidated and rundown vehicles on the
road with substandard safety features. These vehicles not only pose a
hazard to the safety of their occupants but that of other motorists. The
prime mover truck in this case should not have been granted
registration because it failed to comply with the minimum safety
features required for vehicles on the road.
It is, indeed, time for traffic enforcement agencies and the LTO to
strictly enforce all pertinent laws and regulations within their
mandate.
WHEREFORE, the petition is GRANTED. The Court of Appeals
decision dated August 28, 2003 is hereby SET ASIDE. The RTC
decision dated August 7, 2001 is REINSTATED IN FULL.
SO ORDERED.
G.R. No. 129792 December 21, 1999
JARCO MARKETING CORPORATION, LEONARDO KONG,
JOSE TIOPE and ELISA PANELO, petitioners,
vs.
HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR
and CRISELDA R. AGUILAR, respondents.
DAVIDE, JR., J.:
In this petition for review on certiorari under Rule 45 of the Rules of
Court, petitioners seek the reversal of the 17 June 1996 decision 1 of
the Court of Appeals in C.A. G.R. No. CV 37937 and the
resolution 2 denying their motion for reconsideration. The assailed
decision set aside the 15 January 1992 judgment of the Regional Trial
Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and
ordered petitioners to pay damages and attorney's fees to private
respondents Conrado and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvel's
Department Store, Makati City. Petitioners Leonardo Kong, Jose Tiope
and Elisa Panelo are the store's branch manager, operations manager,
and supervisor, respectively. Private respondents are spouses and the
parents of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at
the 2nd floor of Syvel's Department Store, Makati City. CRISELDA
was signing her credit card slip at the payment and verification
counter when she felt a sudden gust of wind and heard a loud thud.
She looked behind her. She then beheld her daughter ZHIENETH on
the floor, her young body pinned by the bulk of the store's gift-
wrapping counter/structure. ZHIENETH was crying and screaming
for help. Although shocked, CRISELDA was quick to ask the
assistance of the people around in lifting the counter and retrieving
ZHIENETH from the floor. 3
ZHIENETH was quickly rushed to the Makati Medical Center where
she was operated on. The next day ZHIENETH lost her speech and
thereafter communicated with CRISELDA by writing on a magic
slate. The injuries she sustained took their toil on her young body. She
died fourteen (14) days after the accident or on 22 May 1983, on the
hospital bed. She was six years old. 4
The cause of her death was attributed to the injuries she sustained.
The provisional medical certificate 5 issued by ZHIENETH's attending
doctor described the extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to
intra-abdominal injuries
due to blunt injury
2. Hemorrhage, massive,
intraperitoneal sec. to
laceration, (L) lobe liver
3. Rupture, stomach,
anterior & posterior walls
4. Complete transection,
4th position, duodenum
5. Hematoma, extensive,
retroperitoneal
6. Contusion, lungs,
severe
CRITICAL
After the burial of their daughter, private respondents demanded
upon petitioners the reimbursement of the hospitalization, medical
bills and wake and funeral expenses 6 which they had incurred.
Petitioners refused to pay. Consequently, private respondents filed a
complaint for damages, docketed as Civil Case No. 7119 wherein they
sought the payment of P157,522.86 for actual damages, P300,000 for
moral damages, P20,000 for attorney's fees and an unspecified amount
for loss of income and exemplary damages.
In their answer with counterclaim, petitioners denied any liability for
the injuries and consequent death of ZHIENETH. They claimed that
CRISELDA was negligent in exercising care and diligence over her
daughter by allowing her to freely roam around in a store filled with
glassware and appliances. ZHIENETH too, was guilty of contributory
negligence since she climbed the counter, triggering its eventual
collapse on her. Petitioners also emphasized that the counter was
made of sturdy wood with a strong support; it never fell nor
collapsed for the past fifteen years since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that
it observed the diligence of a good father of a family in the selection,
supervision and control of its employees. The other petitioners
likewise raised due care and diligence in the performance of their
duties and countered that the complaint was malicious for which they
suffered besmirched reputation and mental anguish. They sought the
dismissal of the complaint and an award of moral and exemplary
damages and attorney's fees in their favor.
In its decision 7 the trial court dismissed the complaint and
counterclaim after finding that the preponderance of the evidence
favored petitioners. It ruled that the proximate cause of the fall of the
counter on ZHIENETH was her act of clinging to it. It believed
petitioners' witnesses who testified that ZHIENETH clung to the
counter, afterwhich the structure and the girl fell with the structure
falling on top of her, pinning her stomach. In contrast, none of private
respondents' witnesses testified on how the counter fell. The trial
court also held that CRISELDA's negligence contributed to
ZHIENETH's accident.
In absolving petitioners from any liability, the trial court reasoned
that the counter was situated at the end or corner of the 2nd floor as a
precautionary measure hence, it could not be considered as an
attractive nuisance. 8 The counter was higher than ZHIENETH. It has
been in existence for fifteen years. Its structure was safe and well-
balanced. ZHIENETH, therefore, had no business climbing on and
clinging to it.
Private respondents appealed the decision, attributing as errors of the
trial court its findings that: (1) the proximate cause of the fall of the
counter was ZHIENETH's misbehavior; (2) CRISELDA was negligent
in her care of ZHIENETH; (3) petitioners were not negligent in the
maintenance of the counter; and (4) petitioners were not liable for the
death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be
entitled to the conclusive presumption that a child below nine (9)
years is incapable of contributory negligence. And even if
ZHIENETH, at six (6) years old, was already capable of contributory
negligence, still it was physically impossible for her to have propped
herself on the counter. She had a small frame (four feet high and
seventy pounds) and the counter was much higher and heavier than
she was. Also, the testimony of one of the store's former employees,
Gerardo Gonzales, who accompanied ZHIENETH when she was
brought to the emergency room of the Makati Medical Center belied
petitioners' theory that ZHIENETH climbed the counter. Gonzales
claimed that when ZHIENETH was asked by the doctor what she did,
ZHIENETH replied, "[N]othing, I did not come near the counter and
the counter just fell on me." 9 Accordingly, Gonzales' testimony on
ZHIENETH's spontaneous declaration should not only be considered
as part of res gestae but also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was
reasonable for her to have let go of ZHIENETH at the precise moment
that she was signing the credit card slip.
Finally, private respondents vigorously maintained that the
proximate cause of ZHIENETH's death, was petitioners' negligence in
failing to institute measures to have the counter permanently nailed.
On the other hand, petitioners argued that private respondents raised
purely factual issues which could no longer be disturbed. They
explained that ZHIENETH's death while unfortunate and tragic, was
an accident for which neither CRISELDA nor even ZHIENETH could
entirely be held faultless and blameless. Further, petitioners adverted
to the trial court's rejection of Gonzales' testimony as unworthy of
credence.
As to private respondent's claim that the counter should have been
nailed to the ground, petitioners justified that it was not necessary.
The counter had been in existence for several years without any prior
accident and was deliberately placed at a corner to avoid such
accidents. Truth to tell, they acted without fault or negligence for they
had exercised due diligence on the matter. In fact, the criminal
case 10 for homicide through simple negligence filed by private
respondents against the individual petitioners was dismissed; a
verdict of acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor of private
respondents and reversed the appealed judgment. It found that
petitioners were negligent in maintaining a structurally dangerous
counter. The counter was shaped like an inverted "L" 11 with a top
wider than the base. It was top heavy and the weight of the upper
portion was neither evenly distributed nor supported by its narrow 1. P50,000.00 by way of
base. Thus, the counter was defective, unstable and dangerous; a compensatory damages
downward pressure on the overhanging portion or a push from the for the death of Zhieneth
front could cause the counter to fall. Two former employees of Aguilar, with legal
petitioners had already previously brought to the attention of the interest (6% p.a.) from 27
management the danger the counter could cause. But the latter April 1984;
ignored their concern. The Court of Appeals faulted the petitioners for
this omission, and concluded that the incident that befell ZHIENETH 2. P99,420.86 as
could have been avoided had petitioners repaired the defective reimbursement for
counter. It was inconsequential that the counter had been in use for hospitalization expenses
some time without a prior incident. incurred; with legal
interest (6% p.a.) from 27
The Court of Appeals declared that ZHIENETH, who was below April 1984;
seven (7) years old at the time of the incident, was absolutely
incapable of negligence or other tort. It reasoned that since a child 3. P100,000.00 as moral
under nine (9) years could not be held liable even for an intentional and exemplary damages;
wrong, then the six-year old ZHIENETH could not be made to
account for a mere mischief or reckless act. It also absolved 4. P20,000.00 in the
CRISELDA of any negligence, finding nothing wrong or out of the concept of attorney's fees;
ordinary in momentarily allowing ZHIENETH to walk while she and
signed the document at the nearby counter.
5. Costs.
The Court of Appeals also rejected the testimonies of the witnesses of
petitioners. It found them biased and prejudiced. It instead gave Private respondents sought a reconsideration of the decision but the
credit to the testimony of disinterested witness Gonzales. The Court same was denied in the Court of Appeals' resolution 14 of 16 July 1997.
of Appeals then awarded P99,420.86 as actual damages, the amount
representing the hospitalization expenses incurred by private Petitioners now seek the reversal of the Court of Appeals' decision
respondents as evidenced by the hospital's statement of account. 12 It and the reinstatement of the judgment of the trial court. Petitioners
denied an award for funeral expenses for lack of proof to substantiate primarily argue that the Court of Appeals erred in disregarding the
the same. Instead, a compensatory damage of P50,000 was awarded factual findings and conclusions of the trial court. They stress that
for the death of ZHIENETH. since the action was based on tort, any finding of negligence on the
part of the private respondents would necessarily negate their claim
We quote the dispositive portion of the assailed decision, 13 thus: for damages, where said negligence was the proximate cause of the
injury sustained. The injury in the instant case was the death of
WHEREFORE, premises considered, the judgment of ZHIENETH. The proximate cause was ZHIENETH's act of clinging to
the lower court is SET ASIDE and another one is the counter. This act in turn caused the counter to fall on her. This and
entered against [petitioners], ordering them to pay CRISELDA's contributory negligence, through her failure to provide
jointly and severally unto [private respondents] the the proper care and attention to her child while inside the store,
following: nullified private respondents' claim for damages. It is also for these
reasons that parents are made accountable for the damage or injury
inflicted on others by their minor children. Under these
circumstances, petitioners could not be held responsible for the
accident that befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already
separated from Syvel's at the time he testified; hence, his testimony
might have been tarnished by ill-feelings against them.
For their part, private respondents principally reiterated their
arguments that neither ZHIENETH nor CRISELDA was negligent at
any time while inside the store; the findings and conclusions of the
Court of Appeals are substantiated by the evidence on record; the
testimony of Gonzales, who heard ZHIENETH comment on the
incident while she was in the hospital's emergency room should
receive credence; and finally, ZHIENETH's part of the res
gestae declaration "that she did nothing to cause the heavy structure to
fall on her" should be considered as the correct version of the
gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of
ZHIENETH was accidental or attributable to negligence; and (2) in
case of a finding of negligence, whether the same was attributable to
private respondents for maintaining a defective counter or to
CRISELDA and ZHIENETH for failing to exercise due and reasonable
care while inside the store premises.
An accident pertains to an unforeseen event in which no fault or
negligence attaches to the defendant. 15 It is "a fortuitous
circumstance, event or happening; an event happening without any
human agency, or if happening wholly or partly through human
agency, an event which under the circumstances is unusual or
unexpected by the person to whom it happens." 16
On the other hand, negligence is the omission to do something which
a reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not
do. 17 Negligence is "the failure to observe, for the protection of the
interest of another person, that degree of care, precaution and
vigilance which the circumstances justly demand, whereby such other
person suffers injury." 18
Accident and negligence are intrinsically contradictory; one cannot
exist with the other. Accident occurs when the person concerned is
exercising ordinary care, which is not caused by fault of any person
and which could not have been prevented by any means suggested by
common prudence. 19
The test in determining the existence of negligence is enunciated in
the landmark case of Plicart v. Smith, 20 thus: 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. 21
We rule that the tragedy which befell ZHIENETH was no accident
and that ZHIENETH's death could only be attributed to negligence.
We quote the testimony of Gerardo Gonzales who was at the scene of
the incident and accompanied CRISELDA and ZHIENETH to the
hospital:
Q While at the Makati Medical Center,
did you hear or notice anything while
the child was being treated?
A At the emergency room we were all
surrounding the child. And when the
doctor asked the child "what did you
do," the child said "nothing, I did not
come near the counter and the counter
just fell on me."
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be
translated?
ATTY. BELTRAN
 Yes, your Honor. you please describe the gift wrapping
counter, were you able to examine?
COURT
A Because every morning before I start
Granted. Intercalate "wala po, hindi po working I used to clean that counter and
ako lumapit doon. Basta bumagsak." 22 since not nailed and it was only
standing on the floor, it was shaky.
This testimony of Gonzales pertaining to ZHIENETH's statement
formed (and should be admitted as) part of the res gestae under xxx xxx xxx
Section 42, Rule 130 of the Rules of Court, thus:
Q Will you please describe the counter
Part of res gestae. Statements made by a person while a at 5:00 o'clock [sic] in the afternoon on
startling occurrence is taking place or immediately [sic] May 9 1983?
prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as A At that hour on May 9, 1983, that
part of the res gestae. So, also, statements accompanying counter was standing beside the
an equivocal act material to the issue, and giving it a verification counter. And since the top
legal significance, may be received as part of the res of it was heavy and considering that it
gestae. was not nailed, it can collapse at
anytime, since the top is heavy.
It is axiomatic that matters relating to declarations of pain or suffering
and statements made to a physician are generally considered xxx xxx xxx
declarations and admissions. 23 All that is required for their
admissibility as part of the res gestae is that they be made or uttered Q And what did you do?
under the influence of a startling event before the declarant had the
time to think and concoct a falsehood as witnessed by the person who A I informed Mr. Maat about that
testified in court. Under the circumstances thus described, it is counter which is [sic] shaky and since
unthinkable for ZHIENETH, a child of such tender age and in Mr. Maat is fond of putting display
extreme pain, to have lied to a doctor whom she trusted with her life. decorations on tables, he even told me
We therefore accord credence to Gonzales' testimony on the that I would put some decorations. But
matter, i.e., ZHIENETH performed no act that facilitated her tragic since I told him that it not [sic] nailed
death. Sadly, petitioners did, through their negligence or omission to and it is shaky he told me "better inform
secure or make stable the counter's base. also the company about it." And since
the company did not do anything about
Gonzales' earlier testimony on petitioners' insistence to keep and the counter, so I also did not do
maintain the structurally unstable gift-wrapping counter proved their anything about the
negligence, thus: counter. 24 [Emphasis supplied]

Q When you assumed the position as Ramon Guevarra, another former employee, corroborated the
gift wrapper at the second floor, will testimony of Gonzales, thus:
Q Will you please described [sic] to the
honorable Court the counter where you
were assigned in January 1983?
xxx xxx xxx
A That counter assigned to me was
when my supervisor ordered me to
carry that counter to another place. I
told him that the counter needs nailing
and it has to be nailed because it might
cause injury or accident to another since
it was shaky.
Q When that gift wrapping counter was
transferred at the second floor on
February 12, 1983, will you please
describe that to the honorable Court?
A I told her that the counter wrapper
[sic] is really in good [sic] condition; it
was shaky. I told her that we had to nail
it.
Q When you said she, to whom are you
referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms.
Panelo when you told her that the
counter was shaky?
A She told me "Why do you have to
teach me. You are only my subordinate
and you are to teach me?" And she even
got angry at me when I told her that.
xxx xxx xxx
Q From February 12, 1983 up to May 9,
1983, what if any, did Ms. Panelo or any
employee of the management do to that
(sic)
xxx xxx xxx
Witness:
None, sir. They never nailed the
counter. They only nailed the counter after
the accident happened. 25 [Emphasis
supplied]
Without doubt, petitioner Panelo and another store supervisor were
personally informed of the danger posed by the unstable counter. Yet,
neither initiated any concrete action to remedy the situation nor
ensure the safety of the store's employees and patrons as a reasonable
and ordinary prudent man would have done. Thus, as confronted by
the situation petitioners miserably failed to discharge the due
diligence required of a good father of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners
failed to establish that the former's testimonies were biased and
tainted with partiality. Therefore, the allegation that Gonzales and
Guevarra's testimonies were blemished by "ill feelings" against
petitioners — since they (Gonzales and Guevarra) were already
separated from the company at the time their testimonies were
offered in court — was but mere speculation and deserved scant
consideration.
It is settled that when the issue concerns the credibility of witnesses,
the appellate courts will not as a general rule disturb the findings of
the trial court, which is in a better position to determine the same. The
trial court has the distinct advantage of actually hearing the testimony
of and observing the deportment of the witnesses. 26 However, the
rule admits of exceptions such as when its evaluation was reached
arbitrarily or it overlooked or failed to appreciate some facts or
circumstances of weight and substance which could affect the result
of the case. 27 In the instant case, petitioners failed to bring their claim
within the exception.
Anent the negligence imputed to ZHIENETH, we apply the
conclusive presumption that favors children below nine (9) years old
in that they are incapable of contributory negligence. In his
book, 28 former Judge Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of age is
conclusively presumed to have acted without
discernment, and is, on that account, exempt from
criminal liability. The same presumption and a like
exemption from criminal liability obtains in a case of a
person over nine and under fifteen years of age, unless
it is shown that he has acted with discernment. Since
negligence may be a felony and a quasi-delict and
required discernment as a condition of liability, either
criminal or civil, a child under nine years of age is, by
analogy, conclusively presumed to be incapable of
negligence; and that the presumption of lack of
discernment or incapacity for negligence in the case of
a child over nine but under fifteen years of age is a
rebuttable one, under our law. The rule, therefore, is
that a child under nine years of age must be
conclusively presumed incapable of contributory
negligence as a matter of law. [Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and
assume that she climbed over the counter, no injury should have
occurred if we accept petitioners' theory that the counter was stable
and sturdy. For if that was the truth, a frail six-year old could not
have caused the counter to collapse. The physical analysis of the
counter by both the trial court and Court of Appeals and a scrutiny of
the evidence 29 on record reveal otherwise, i.e., it was not durable after
all. Shaped like an inverted "L," the counter was heavy, huge, and its
top laden with formica. It protruded towards the customer waiting
area and its base was not secured. 30
CRISELDA too, should be absolved from any contributory negligence.
Initially, ZHIENETH held on to CRISELDA's waist, later to the latter's
hand. 31 CRISELDA momentarily released the child's hand from her
clutch when she signed her credit card slip. At this precise moment, it
was reasonable and usual for CRISELDA to let go of her child.
Further, at the time ZHIENETH was pinned down by the counter, she
was just a foot away from her mother; and the gift-wrapping counter
was just four meters away from CRISELDA. 32 The time and distance
were both significant. ZHIENETH was near her mother and did not
loiter as petitioners would want to impress upon us. She even
admitted to the doctor who treated her at the hospital that she did not
do anything; the counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is
DENIED and the challenged decision of the Court of Appeals of 17
June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
G.R. No. L-30741 January 30, 1930
TOMAS BERNAL and FORTUNATA ENVERSO, plaintiffs-
appellants,
vs.
J. V. HOUSE and TACLOBAN ELECTRIC and ICE PLANT,
LTD., defendants-appellee.
Kapunan and Kapunan for appellants.
Camus and Delgado for appellees.
MALCOLM, J.:
The parents of the five-year old child, Purificacion Bernal, appeal
from a judgment of the Court of First Instance of Leyte, which denied
them P15,000 damages from J.V. House and the Tacloban Electric &
Ice Plant, Ltd., for the death of the child as a consequence of burns
alleged to have been caused by the fault and negligence of the
defendants.
The salient facts as found by the trial judge are the following:
On the evening of April 10, 1925, the procession of Holy Friday was
held in Tacloban, Leyte. Fortunata Enverso with her daughter
Purificacion Bernal came from another municipality to attend the
religious celebration. After the procession was over, the woman and
her daughter, accompanied by two other persons by the names of
Fausto and Elias, passed along a public street named Gran Capitan.
The little girl was allowed to get a short distance in advance of her
mother and her friends. When in front of the offices of the Tacloban
Electric & Ice Plant, Ltd., and automobile appeared from the opposite
direction which so frightened the child that she turned to run, with
the result that she fell into the street gutter. At that time there was hot
water in this gutter or ditch coming from the Electric Ice Plant of J.V.
House. When the mother and her companions reached the child, they
found her face downward in the hot water. Her clothes were
immediately removed and, then covered with a garment, the girl was
taken to the provincial hospital. There she was attended by the
resident physician, Dr. Victoriano A. Benitez. Despite his efforts, the
child died that same night at 11:40 o'clock.
Dr. Benitez, who, of course, was in a better position than any one to
know the cause of the death, and who had no reason to depart from
the true facts, certified that the cause of death was "Burns, 3rd Degree,
whole Body", and that the contributory causes were "Congestion of
the Brain and visceras of the chest & abdomen". The same physician
in his general record in the Leyte Hospital for this patient, under
diagnosis in full, stated: "Burned 3rd Degree, whole body". The
treatment record of the attending nurse was much to the same effect.
The defense was that the hot water was permitted to flow down the
side of the street Gran Captain with the knowledge and consent of the
authorities; that the cause of death was other than the hot water; and
that in the death the plaintiffs contributed by their own fault and
negligence. The trial judge, however, after examination of the
evidence presented by the defendants, failed to sustain their theory of
the case, except as to the last mentioned special defense. We are
shown no good reason for the departing from the conclusion of the
trial judge to the effect that the sudden death of the child Purification
Bernal was due principally to the nervous shock and organic
calefaction produced by the extensive burns from the hot water. "The
danger from burns is proportional rather to the extent of surface
involved than to the depth of the burn". (Wharton & Stille's Medical
Jurisprudence, vol. 3, p. 263). The same authority continues. "Burns of
the first degree, covering two-thirds of the body surface, are rarely
recovered from. . . . Children seem especially susceptible to the effect
of burns." (Pp. 263, 264).
Although the trial judge made the findings of fact hereinbefore
outlined, he nevertheless was led to order the dismissal of the action
because of the contributory negligence of the plaintiffs. It is from this
point that a majority of the court depart from the stand taken by the
trial judge. The mother and her child had a perfect right to be on the
principal street of Tacloban, Leyte, on the evening when the religious
procession was held. There was nothing abnormal in allowing the
child to run along a few paces in advance of the mother. No one could
foresee the coincidence of an automobile appearing and of a
frightened child running and falling into a ditch filled with hot water.
The doctrines announced in the much debated case of
Rakes vs. Atlantic, Gulf and Pacific Co. ([1907], 7 Phil., 359), still rule.
Article 1902 of the Civil Code must again be enforced. The
contributory negligence of the child and her mother, if any, does not
operate as a bar to recovery, but in its strictest sense could only result
in reduction of the damages.
Having reached the conclusion that liability exists, we next turn to
discover who can recover damages for the obligation, and against
whom the action will lie. The plaintiffs are Tomas Bernal and
Fortunata Enverso. The latter was the mother of Purificacion Bernal
and the former was the natural father, who had never legally
recognized his child. The daughter lived with the mother, and
presumably was supported by her. Under these facts, recovery should
be permitted the mother but not the father. As to the defendants, they
are J.V. House and the Tacloban Electric & Ice Plant, Ltd., J.V. House
was granted a franchise by Act No. 2700 of the Philippine Legislature
approved on March 9, 1917. He only transferred this franchise
formally to the Tacloban Electric & Ice Plant, Ltd. on March 30, 1926,
that is, nearly a year after the death of the child Purificacion Bernal.
Under these facts, J.V. House is solely responsible.
Counsel for appellees point out that there is no satisfactory proof to
establish the pecuniary loss. That is true. But in cases of this character
the law presumes a loss because of the impossibility of exact
computation. There is not enough money in the entire world to
compensate a mother for the death of her child. In criminal cases, the
rule has been to allow as a matter of course P1,000 as indemnity to the
heirs of the deceased. In the case of Manzanares vs. Moreta ([1918], 38
Phil., 821), which in many respects is on all fours with the case at bar,
the same amount of P1,000 was allowed the mother of the dead boy
eight or nine years of age. The same criterion will have to be followed
in this instance.
The result will, therefore, be to accept the findings of fact made by the
trial judge; to set aside the legal deductions flowing from those facts;
to hold that the death of the child Purificacion Bernal was the result of
fault and negligence in permitting hot water to flow through the
public streets, there to endanger the lives of passers-by who were
unfortunately enough to fall into it; to rule that the proper plaintiff is
the mother Fortunata Enverso and not the natural father Tomas
Bernal; to likewise rule that the person responsible to the plaintiff is
J.V. House and not the entity the Tacloban Electric & Ice Plant, Ltd.;
and finally to adjudge that the amount of recovery, without the
tendering of special proof, should be fixed, as in other cases, at P1,000.
Concordant with the pronouncements just made, the judgment
appealed from shall in part be reversed and in the court of origin
another judgment shall issue in favor of Fortunata Enverso and
against J.V. House for the amount of P1,000, and for the costs of both
instances.
Street, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.
Johnson, J., dissents.
Separate Opinions
ROMUALDEZ, J., dissenting:
Even taking the finding that the defendant by its negligence helped to
bring about the accident which resulted in the death of the child
Purificacion Bernal, as not subject to question now, not being a matter
discussed in this instance, I nevertheless deem the trial court's other
finding sufficiently proved in the record, to the effect that the plaintiff,
by negligence, contributed to that most regrettable result.
With due respect to the majority opinion, I believe the judgment
appealed from should be affirmed.
G.R. No. L-12219 March 15, 1918
AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the
defendant, Frank Smith, jr., the sum of P31,000, as damages alleged to
have been caused by an automobile driven by the defendant. From a
judgment of the Court of First Instance of the Province of La Union
absolving the defendant from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took
place on December 12, 1912, on the Carlatan Bridge, at San Fernando,
La Union. It appears that upon the occasion in question the plaintiff
was riding on his pony over said bridge. Before he had gotten half
way across, the defendant approached from the opposite direction in
an automobile, 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 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.
The plaintiff, it appears, saw the automobile coming and heard the
warning signals. However, being perturbed by the novelty of the
apparition or the rapidity of the approach, he pulled the pony closely
up against the railing on the right side of the bridge instead of going
to the left. He says that the reason he did this was that he thought he
did not have sufficient time to get over to the other side. The bridge is
shown to have a length of about 75 meters and a width of 4.80 meters.
As the automobile approached, the defendant guided it toward his
left, that being the proper side of the road for the machine. In so doing
the defendant assumed that the horseman would move to the other
side. The pony had not as yet exhibited fright, and the rider had made
no sign for the automobile to stop. Seeing that the pony was
apparently quiet, the defendant, instead of veering to the right while
yet some distance away or slowing down, continued to approach
directly toward the horse without diminution of speed. When he had
gotten quite near, there being then no possibility of the horse getting
across to the other side, the defendant quickly turned his car
sufficiently to the right to escape hitting the horse alongside of the
railing where it as then standing; but in so doing the automobile
passed in such close proximity to the animal that it became frightened
and turned its body across the bridge with its head toward the railing.
In so doing, it as struck on the hock of the left hind leg by the flange of
the car and the limb was broken. The horse fell and its rider was
thrown off with some violence. From the evidence adduced in the
case we believe that when the accident occurred the free space where
the pony stood between the automobile and the railing of the bridge
was probably less than one and one half meters. As a result of its
injuries the horse died. The plaintiff received contusions which
caused temporary unconsciousness and required medical attention
for several days.
The question presented for decision is whether or not the defendant in
maneuvering his car in the manner above described was guilty of
negligence such as gives rise to a civil obligation to repair the damage
done; and we are of the opinion that he is so liable. As the defendant
started across the bridge, he had the right to assume that the horse
and the rider would pass over to the proper side; but as he moved
toward the center of the bridge it was demonstrated to his eyes that
this would not be done; and he must in a moment have perceived that
it was too late for the horse to cross with safety in front of the moving
vehicle. In the nature of things this change of situation occurred while
the automobile was yet some distance away; and from this moment it
was not longer within the power of the plaintiff to escape being run
down by going to a place of greater safety. The control of the situation
had then passed entirely to the defendant; and it was his duty either
to bring his car to an immediate stop or, seeing that there were no
other persons on the bridge, to take the other side and pass
sufficiently far away from the horse to avoid the danger of collision.
Instead of doing this, the defendant ran straight on until he was
almost upon the horse. He was, we think, deceived into doing this by
the fact that the horse had not yet exhibited fright. But in view of the
known nature of horses, there was an appreciable risk that, if the
animal in question was unacquainted with automobiles, he might get
exited and jump under the conditions which here confronted him.
When the defendant exposed the horse and rider to this danger he
was, in our opinion, negligent in the eye of the law.
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. The law here in effect
adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman law. The existence
of negligence in a given case is not determined by reference to the
personal judgment of the actor in the situation before him. The law
considers what would be reckless, blameworthy, or negligent in the
man of ordinary intelligence and prudence and determines liability by
that.
The question as to what would constitute the conduct of a prudent
man in a given situation must of course be always determined in the
light of human experience and in view of the facts involved in the
particular case. Abstract speculations cannot here be of much value
but this much can be profitably said: Reasonable men govern their
conduct by the circumstances which are before them or known to
them. They are not, and are not supposed to be, omniscient of the
future. Hence they can be expected to take care only when there is
something before them to suggest or warn of danger. Could a prudent
man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take
precautions to guard against that harm. Reasonable foresight of harm,
followed by ignoring of the suggestion born of this prevision, is
always necessary before negligence can be held to exist. Stated in
these terms, the proper criterion for determining the existence of
negligence in a given case is this: Conduct is said to be negligent
when a prudent man in the position of the tortfeasor would have
foreseen that an effect harmful to another was sufficiently probable to
warrant his foregoing conduct or guarding against its consequences.
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.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7
Phil. Rep., 359) should perhaps be mentioned in this connection. This
Court there held that while contributory negligence on the part of the
person injured did not constitute a bar to recovery, it could be
received in evidence to reduce the damages which would otherwise
have been assessed wholly against the other party. The defendant
company had there employed the plaintiff, as a laborer, to assist in
transporting iron rails from a barge in Manila harbor to the company's
yards located not far away. The rails were conveyed upon cars which
were hauled along a narrow track. At certain spot near the water's
edge the track gave way by reason of the combined effect of the
weight of the car and the insecurity of the road bed. The car was in
consequence upset; the rails slid off; and the plaintiff's leg was caught
and broken. It appeared in evidence that the accident was due to the
effects of the typhoon which had dislodged one of the supports of the
track. The court found that the defendant company was negligent in
having failed to repair the bed of the track and also that the plaintiff
was, at the moment of the accident, guilty of contributory negligence
in walking at the side of the car instead of being in front or behind. It
was held that while the defendant was liable to the plaintiff by reason
of its negligence in having failed to keep the track in proper repair
nevertheless the amount of the damages should be reduced on
account of the contributory negligence in the plaintiff. As will be seen
the defendant's negligence in that case consisted in an omission only.
The liability of the company arose from its responsibility for the
dangerous condition of its track. In a case like the one now before us,
where the defendant was actually present and operating the
automobile which caused the damage, we do not feel constrained to
attempt to weigh the negligence of the respective parties in order to
apportion the damage according to the degree of their relative fault. It
is enough to say that the negligence of the defendant was in this case
the immediate and determining cause of the accident and that the
antecedent negligence of the plaintiff was a more remote factor in the
case.
A point of minor importance in the case is indicated in the special
defense pleaded in the defendant's answer, to the effect that the
subject matter of the action had been previously adjudicated in the
court of a justice of the peace. In this connection it appears that soon
after the accident in question occurred, the plaintiff caused criminal
proceedings to be instituted before a justice of the peace charging the
defendant with the infliction of serious injuries (lesiones graves). At
the preliminary investigation the defendant was discharged by the
magistrate and the proceedings were dismissed. Conceding that the
acquittal of the defendant at the trial upon the merits in a criminal
prosecution for the offense mentioned would be res adjudicata upon
the question of his civil liability arising from negligence -- a point
upon which it is unnecessary to express an opinion -- the action of the
justice of the peace in dismissing the criminal proceeding upon the
preliminary hearing can have no effect. (See U. S. vs. Banzuela and
Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower
court must be reversed, and judgment is her rendered that the
plaintiff recover of the defendant the sum of two hundred pesos
(P200), with costs of other instances. The sum here awarded is
estimated to include the value of the horse, medical expenses of the
plaintiff, the loss or damage occasioned to articles of his apparel, and
lawful interest on the whole to the date of this recovery. The other
damages claimed by the plaintiff are remote or otherwise of such
character as not to be recoverable. So ordered.
Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ., concur.
Johnson, J., reserves his vote.
Separate Opinions
MALCOLM, J., concurring:
After mature deliberation, I have finally decided to concur with the
judgment in this case. I do so because of my understanding of the "last
clear chance" rule of the law of negligence as particularly applied to
automobile accidents. This rule cannot be invoked where the
negligence of the plaintiff is concurrent with that of the defendant.
Again, if a traveler when he reaches the point of collision is in a
situation to extricate himself and avoid injury, his negligence at that
point will prevent a recovery. But Justice Street finds as a fact that the
negligent act of the interval of time, and that at the moment the
plaintiff had no opportunity to avoid the accident. Consequently, the
"last clear chance" rule is applicable. In other words, when a traveler
has reached a point where he cannot extricate himself and vigilance
on his part will not avert the injury, his negligence in reaching that
position becomes the condition and not the proximate cause of the
injury and will not preclude a recovery. (Note especially Aiken vs.
Metcalf [1917], 102 Atl., 330.)
G.R. No. 108164 February 23, 1995
FAR EAST BANK AND TRUST COMPANY, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, LUIS A. LUNA and
CLARITA S. LUNA, respondents.
VITUG, J.:
Some time in October 1986, private respondent Luis A. Luna applied
for, and was accorded, a FAREASTCARD issued by petitioner Far
East Bank and Trust Company ("FEBTC") at its Pasig Branch. Upon
his request, the bank also issued a supplemental card to private
respondent Clarita S. Luna.
In August 1988, Clarita lost her credit card. FEBTC was forthwith
informed. In order to replace the lost card, Clarita submitted an
affidavit of loss. In cases of this nature, the bank's internal security
procedures and policy would appear to be to meanwhile so record the
lost card, along with the principal card, as a "Hot Card" or "Cancelled
Card" in its master file.
On 06 October 1988, Luis tendered a despedida lunch for a close friend,
a Filipino-American, and another guest at the Bahia Rooftop
Restaurant of the Hotel Intercontinental Manila. To pay for the lunch,
Luis presented his FAREASTCARD to the attending waiter who
promptly had it verified through a telephone call to the bank's Credit
Card Department. Since the card was not honored, Luis was forced to
pay in cash the bill amounting to P588.13. Naturally, Luis felt
embarrassed by this incident.
In a letter, dated 11 October 1988, private respondent Luis Luna,
through counsel, demanded from FEBTC the payment of damages.
Adrian V. Festejo, a vice-president of the bank, expressed the bank's
apologies to Luis. In his letter, dated 03 November 1988, Festejo, in
part, said:
 In cases when a card is reported to our office as lost,
FAREASTCARD undertakes the necessary action to avert its
unauthorized use (such as tagging the card as hotlisted), as it
is always our intention to protect our cardholders.
An investigation of your case however, revealed that
FAREASTCARD failed to inform you about its security policy.
Furthermore, an overzealous employee of the Bank's Credit
Card Department did not consider the possibility that it may
have been you who was presenting the card at that time (for
which reason, the unfortunate incident occurred). 1
Festejo also sent a letter to the Manager of the Bahia Rooftop
Restaurant to assure the latter that private respondents were "very
valued clients" of FEBTC. William Anthony King, Food and Beverage
Manager of the Intercontinental Hotel, wrote back to say that the
credibility of private respondent had never been "in question." A copy
of this reply was sent to Luis by Festejo.
Still evidently feeling aggrieved, private respondents, on 05 December
1988, filed a complaint for damages with the Regional Trial Court
("RTC") of Pasig against FEBTC.
On 30 March 1990, the RTC of Pasig, given the foregoing factual
settings, rendered a decision ordering FEBTC to pay private
respondents (a) P300,000.00 moral damages; (b) P50,000.00 exemplary
damages; and (c) P20,000.00 attorney's fees.
On appeal to the Court of Appeals, the appellate court affirmed the
decision of the trial court.
Its motion for reconsideration having been denied by the appellate
court, FEBTC has come to this Court with this petition for review.
There is merit in this appeal.
In culpa contractual, moral damages may be recovered where the
defendant is shown to have acted in bad faith or with malice in the
breach of the contract. 2 The Civil Code provides:
Art. 2220. Willful injury to property may be a legal ground for
awarding moral damages if the court should find that, under
the circumstances, such damages are justly due. The same rule
applies to breaches of contract where the defendant acted
fraudulently or in bad faith. (Emphasis supplied)
Bad faith, in this context, includes gross, but not simple,
negligence.3 Exceptionally, in a contract of carriage, moral damages are
also allowed in case of death of a passenger attributable to the fault
(which is presumed4 ) of the common carrier.5
Concededly, the bank was remiss in indeed neglecting to personally
inform Luis of his own card's cancellation. Nothing in the findings of
the trial court and the appellate court, however, can sufficiently
indicate any deliberate intent on the part of FEBTC to cause harm to
private respondents. Neither could FEBTC's negligence in failing to
give personal notice to Luis be considered so gross as to amount to
malice or bad faith.
Malice or bad faith implies a conscious and intentional design to do a
wrongful act for a dishonest purpose or moral obliquity; it is different
from the negative idea of negligence in that malice or bad faith
contemplates a state of mind affirmatively operating with furtive
design or ill will.6
We are not unaware of the previous rulings of this Court, such as
in American Express International, Inc., vs. Intermediate Appellate
Court (167 SCRA 209) and Bank of Philippine Islands vs. Intermediate
Appellate Court (206 SCRA 408), sanctioning the application of Article
21, in relation to Article 2217 and Article 22197 of the Civil Code to a
contractual breach similar to the case at bench. Article 21 states:
Art. 21. Any person who wilfully causes loss or injury to
another in a manner that is contrary to morals, good customs
or public policy shall compensate the latter for the damage.
Article 21 of the Code, it should be observed, contemplates a
conscious act to cause harm. Thus, even if we are to assume that the
provision could properly relate to a breach of contract, its application
can be warranted only when the defendant's disregard of his
contractual obligation is so deliberate as to approximate a degree of
misconduct certainly no less worse than fraud or bad faith. Most
importantly, Article 21 is a mere declaration of a general principle in
human relations that clearly must, in any case, give way to the specific
provision of Article 2220 of the Civil Code authorizing the grant of
moral damages in culpa contractual solely when the breach is due to
fraud or bad faith.
Mr. Justice Jose B.L. Reyes, in his ponencia in Fores
vs. Miranda8 explained with great clarity the predominance that we
should give to Article 2220 in contractual relations; we quote:
Anent the moral damages ordered to be paid to the
respondent, the same must be discarded. We have repeatedly
ruled (Cachero vs. Manila Yellow Taxicab Co. Inc., 101 Phil.
523; 54 Off. Gaz., [26], 6599; Necesito, et al. vs. Paras, 104 Phil.,
75; 56 Off. Gaz., [23] 4023), that moral damages are not
recoverable in damage actions predicated on a breach of the
contract of transportation, in view of Articles 2219 and 2220 of
the new Civil Code, which provide as follows:
Art. 2219. Moral damages may be recovered in
the following and analogous cases:
(1) A criminal offense resulting in physical
injuries;
(2) Quasi-delicts causing physical injuries;
xxx xxx xxx
Art. 2220. Wilful injury to property may be a
legal ground for awarding moral damages if the
court should find that, under the circumstances,
such damages are justly due. The same rule
applies to breaches of contract where the
defendant acted fraudulently or in bad faith.
By contrasting the provisions of these two articles it
immediately becomes apparent that:
(a) In case of breach of contract (including one of
transportation) proof of bad faith or fraud (dolus), i.e., wanton
or deliberately injurious conduct, is essential to justify an
award of moral damages; and
(b) That a breach of contract can not be considered included in
the descriptive term "analogous cases" used in Art. 2219; not
only because Art. 2220 specifically provides for the damages
that are caused contractual breach, but because the definition
of quasi-delict in Art. 2176 of the Code expressly excludes the
cases where there is a "preexisitng contractual relations
between the parties."
Art. 2176. Whoever by act or omission causes
damage to another, there being fault or
negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no
pre-existing contractual relation between the
parties, is called a quasi-delict and is governed
by the provisions of this Chapter.
The exception to the basic rule of damages now under
consideration is a mishap resulting in the death of a passenger,
in which case Article 1764 makes the common carrier
expressly subject to the rule of Art. 2206, that entitles the
spouse, descendants and ascendants of the deceased passenger
to "demand moral damages for mental anguish by reason of
the death of the deceased" (Necesito vs. Paras, 104 Phil. 84,
Resolution on motion to reconsider, September 11, 1958). But
the exceptional rule of Art. 1764 makes it all the more evident
that where the injured passenger does not die, moral damages
are not recoverable unless it is proved that the carrier was
guilty of malice or bad faith. We think it is clear that the mere
carelessness of the carrier's driver does not per se constitute or
justify an inference of malice or bad faith on the part of the
carrier; and in the case at bar there is no other evidence of such
malice to support the award of moral damages by the Court of
Appeals. To award moral damages for breach of contract,
therefore, without proof of bad faith or malice on the part of
the defendant, as required by Art. 2220, would be to violate
 the clear provisions of the law, and constitute unwarranted
judicial legislation.
xxx xxx xxx
The distinction between fraud, bad faith or malice in the sense
of deliberate or wanton wrong doing and negligence (as mere
carelessness) is too fundamental in our law to be ignored
(Arts. 1170-1172); their consequences being clearly
differentiated by the Code.
Art. 2201. In contracts and quasi-contracts, the
damages for which the obligor who acted in
good faith is liable shall be those that are the
natural and probable consequences of the
breach of the obligation, and which the parties
have foreseen or could have reasonably
foreseen at the time the obligation was
constituted.
In case of fraud, bad faith, malice or wanton
attitude, the obligor shall be responsible for all
damages which may be reasonably attributed to
the non-performance of the obligation.
It is to be presumed, in the absence of statutory provision to
the contrary, that this difference was in the mind of the
lawmakers when in Art. 2220 they limited recovery of moral
damages to breaches of contract in bad faith. It is true that
negligence may be occasionally so gross as to amount to
malice; but the fact must be shown in evidence, and a carrier's
bad faith is not to be lightly inferred from a mere finding that
the contract was breached through negligence of the carrier's
employees.
The Court has not in the process overlooked another rule that a quasi-
delict can be the cause for breaching a contract that might thereby
permit the application of applicable principles on tort9 even where
there is a pre-existing contract between the plaintiff and the defendant
(Phil. Airlines vs. Court of Appeals, 106 SCRA 143; Singson vs. Bank
of Phil. Islands, 23 SCRA 1117; and Air France vs. Carrascoso, 18
SCRA 155). This doctrine, unfortunately, cannot improve private
respondents' case for it can aptly govern only where the act or
omission complained of would constitute an actionable tort
independently of the contract. The test (whether a quasi-delict can be
deemed to underlie the breach of a contract) can be stated thusly:
Where, without a pre-existing contract between two parties, an act or
omission can nonetheless amount to an actionable tort by itself, the
fact that the parties are contractually bound is no bar to the
application of quasi-delict provisions to the case. Here, private
respondents' damage claim is predicated solely on their contractual
relationship; without such agreement, the act or omission complained
of cannot by itself be held to stand as a separate cause of action or as
an independent actionable tort.
The Court finds, therefore, the award of moral damages made by the
court a quo, affirmed by the appellate court, to be inordinate and
substantially devoid of legal basis.
Exemplary or corrective damages, in turn, are intended to serve as an
example or as correction for the public good in addition to moral,
temperate, liquidated or compensatory damages (Art. 2229, Civil
Code; see Prudenciado vs. Alliance Transport System, 148 SCRA 440;
Lopez vs. Pan American World Airways, 16 SCRA 431). In criminal
offenses, exemplary damages are imposed when the crime is
committed with one or more aggravating circumstances (Art. 2230,
Civil Code). In quasi-delicts, such damages are granted if the
defendant is shown to have been so guilty of gross negligence as to
approximate malice (See Art. 2231, Civil Code; CLLC E.G. Gochangco
Workers Union vs. NLRC, 161 SCRA 655; Globe Mackay Cable and
Radio Corp. vs. CA, 176 SCRA 778). In contracts and quasi-contracts, the
court may award exemplary damages if the defendant is found to
have acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner (Art. 2232, Civil Code; PNB vs. Gen. Acceptance
and Finance Corp., 161 SCRA 449).
Given the above premises and the factual circumstances here
obtaining, it would also be just as arduous to sustain the exemplary
damages granted by the courts below (see De Leon vs. Court of
Appeals, 165 SCRA 166).
Nevertheless, the bank's failure, even perhaps inadvertent, to honor
its credit card issued to private respondent Luis should entitle him to
recover a measure of damages sanctioned under Article 2221 of the
Civil Code providing thusly:
Art. 2221. Nominal damages are adjudicated in order that a
right of the plaintiff, which has been violated or invaded by
the defendant, may be vindicated or recognized, and not for
the purpose of indemnifying the plaintiff for any loss suffered
by him.
Reasonable attorney's fees may be recovered where the court deems
such recovery to be just and equitable (Art. 2208, Civil Code). We see
no issue of sound discretion on the part of the appellate court in
allowing the award thereof by the trial court.
WHEREFORE, the petition for review is given due course. The
appealed decision is MODIFIED by deleting the award of moral and
exemplary damages to private respondents; in its stead, petitioner is
ordered to pay private respondent Luis A. Luna an amount of
P5,000.00 by way of nominal damages. In all other respects, the
appealed decision is AFFIRMED. No costs.
SO ORDERED.
G.R. No. 156109 November 18, 2004
KHRISTINE REA M. REGINO, Assisted and Represented by
ARMANDO REGINO, petitioner,
vs.
PANGASINAN COLLEGES OF SCIENCE AND TECHNOLOGY,
RACHELLE A. GAMUROT and ELISSA BALADAD, respondents.
DECISION
PANGANIBAN, J.:
Upon enrolment, students and their school enter upon a reciprocal
contract. The students agree to abide by the standards of academic
performance and codes of conduct, issued usually in the form of
manuals that are distributed to the enrollees at the start of the school
term. Further, the school informs them of the itemized fees they are
expected to pay. Consequently, it cannot, after the enrolment of a
student, vary the terms of the contract. It cannot require fees other
than those it specified upon enrolment.
The Case
Before the Court is a Petition for Review under Rule 45,1 seeking to
nullify the July 12, 20022 and the November 22, 20023 Orders of the
Regional Trial Court (RTC) of Urdaneta City, Pangasinan (Branch 48)
in Civil Case No. U-7541. The decretal portion of the first assailed
Order reads:
"WHEREFORE, the Court GRANTS the instant motion to
dismiss for lack of cause of action."4
The second challenged Order denied petitioner's Motion for
Reconsideration.
The Facts
Petitioner Khristine Rea M. Regino was a first year computer science
student at Respondent Pangasinan Colleges of Science and
Technology (PCST). Reared in a poor family, Regino went to college
mainly through the financial support of her relatives. During the
second semester of school year 2001-2002, she enrolled in logic and
statistics subjects under Respondents Rachelle A. Gamurot and Elissa
Baladad, respectively, as teachers.
In February 2002, PCST held a fund raising campaign dubbed the
"Rave Party and Dance Revolution," the proceeds of which were to go
to the construction of the school's tennis and volleyball courts. Each
student was required to pay for two tickets at the price of P100 each.
The project was allegedly implemented by recompensing students
who purchased tickets with additional points in their test scores;
those who refused to pay were denied the opportunity to take the
final examinations.
Financially strapped and prohibited by her religion from attending
dance parties and celebrations, Regino refused to pay for the tickets.
On March 14 and March 15, 2002, the scheduled dates of the final
examinations in logic and statistics, her teachers -- Respondents
Rachelle A. Gamurot and Elissa Baladad -- allegedly disallowed her
from taking the tests. According to petitioner, Gamurot made her sit
out her logic class while her classmates were taking their
examinations. The next day, Baladad, after announcing to the entire
class that she was not permitting petitioner and another student to
take their statistics examinations for failing to pay for their tickets,
allegedly ejected them from the classroom. Petitioner's pleas
ostensibly went unheeded by Gamurot and Baladad, who
unrelentingly defended their positions as compliance with PCST's
policy.
On April 25, 2002, petitioner filed, as a pauper litigant, a
Complaint5 for damages against PCST, Gamurot and Baladad. In her
Complaint, she prayed for P500,000 as nominal damages; P500,000 as
moral damages; at least P1,000,000 as exemplary damages; P250,000
as actual damages; plus the costs of litigation and attorney's fees.
On May 30, 2002, respondents filed a Motion to Dismiss6 on the
ground of petitioner's failure to exhaust administrative remedies.
According to respondents, the question raised involved the
determination of the wisdom of an administrative policy of the PCST;
hence, the case should have been initiated before the proper
administrative body, the Commission of Higher Education (CHED).
In her Comment to respondents' Motion, petitioner argued that prior
exhaustion of administrative remedies was unnecessary, because her
action was not administrative in nature, but one purely for damages
arising from respondents' breach of the laws on human relations. As
such, jurisdiction lay with the courts.
On July 12, 2002, the RTC dismissed the Complaint for lack of cause of
action.
Ruling of the Regional Trial Court
In granting respondents' Motion to Dismiss, the trial court noted that
the instant controversy involved a higher institution of learning, two
of its faculty members and one of its students. It added that Section 54
of the Education Act of 1982 vested in the Commission on Higher
Education (CHED) the supervision and regulation of tertiary schools.
Thus, it ruled that the CHED, not the courts, had jurisdiction over the
controversy.7
In its dispositive portion, the assailed Order dismissed the Complaint
for "lack of cause of action" without, however, explaining this ground.
Aggrieved, petitioner filed the present Petition on pure questions of
law.8
Issues
In her Memorandum, petitioner raises the following issues for our
consideration:
"Whether or not the principle of exhaustion of administrative
remedies applies in a civil action exclusively for damages
based on violation of the human relation provisions of the
Civil Code, filed by a student against her former school.
"Whether or not there is a need for prior declaration of
invalidity of a certain school administrative policy by the
Commission on Higher Education (CHED) before a former
student can successfully maintain an action exclusively for
damages in regular courts.
"Whether or not the Commission on Higher Education
(CHED) has exclusive original jurisdiction over actions for
damages based upon violation of the Civil Code provisions on
human relations filed by a student against the school."9
All of the foregoing point to one issue -- whether the doctrine of
exhaustion of administrative remedies is applicable. The Court,
however, sees a second issue which, though not expressly raised by
petitioner, was impliedly contained in her Petition: whether the
Complaint stated sufficient cause(s) of action.
The Court's Ruling
The Petition is meritorious.
First Issue:
Exhaustion of Administrative Remedies
Respondents anchored their Motion to Dismiss on petitioner's alleged
failure to exhaust administrative remedies before resorting to the
RTC. According to them, the determination of the controversy hinge
on the validity, the wisdom and the propriety of PCST's academic
policy. Thus, the Complaint should have been lodged in the CHED,
the administrative body tasked under Republic Act No. 7722 to
implement the state policy to "protect, foster and promote the right of
all citizens to affordable quality education at all levels and to take
appropriate steps to ensure that education is accessible to all."10
Petitioner counters that the doctrine finds no relevance to the present
case since she is praying for damages, a remedy beyond the domain
of the CHED and well within the jurisdiction of the courts.11
Petitioner is correct. First, the doctrine of exhaustion of administrative
remedies has no bearing on the present case. In Factoran Jr. v.
CA,12 the Court had occasion to elucidate on the rationale behind this
doctrine:
"The doctrine of exhaustion of administrative remedies is
basic. Courts, for reasons of law, comity, and convenience,
should not entertain suits unless the available administrative
remedies have first been resorted to and the proper authorities
have been given the appropriate opportunity to act and correct
their alleged errors, if any, committed in the administrative
forum. x x x.13 "
Petitioner is not asking for the reversal of the policies of PCST.
Neither is she demanding it to allow her to take her final
examinations; she was already enrolled in another educational
institution. A reversal of the acts complained of would not adequately
redress her grievances; under the circumstances, the consequences of
respondents' acts could no longer be undone or rectified.
Second, exhaustion of administrative remedies is applicable when
there is competence on the part of the administrative body to act upon
the matter complained of.14 Administrative agencies are not courts;
they are neither part of the judicial system, nor are they deemed
judicial tribunals.15 Specifically, the CHED does not have the power to
award damages.16 Hence, petitioner could not have commenced her
case before the Commission.
Third, the exhaustion doctrine admits of exceptions, one of which
arises when the issue is purely legal and well within the jurisdiction
of the trial court.17 Petitioner's action for damages inevitably calls for
the application and the interpretation of the Civil Code, a function
that falls within the jurisdiction of the courts.18
Second Issue:
Cause of Action
Sufficient Causes of Action Stated in the Allegations in the
Complaint
As a rule, every complaint must sufficiently allege a cause of action;
failure to do so warrants its dismissal.19 A complaint is said to assert a
sufficient cause of action if, admitting what appears solely on its face
to be correct, the plaintiff would be entitled to the relief prayed for.
Assuming the facts that are alleged to be true, the court should be able
to render a valid judgment in accordance with the prayer in the
complaint.20
A motion to dismiss based on lack of cause of action hypothetically
admits the truth of the alleged facts. In their Motion to Dismiss,
respondents did not dispute any of petitioner's allegations, and they
admitted that "x x x the crux of plaintiff's cause of action is the
determination of whether or not the assessment of P100 per ticket is
excessive or oppressive."21 They thereby premised their prayer for
dismissal on the Complaint's alleged failure to state a cause of action.
Thus, a reexamination of the Complaint is in order.
The Complaint contains the following factual allegations:
"10. In the second week of February 2002, defendant Rachelle
A. Gamurot, in connivance with PCST, forced plaintiff and her
classmates to buy or take two tickets each, x x x;
"11. Plaintiff and many of her classmates objected to the forced
distribution and selling of tickets to them but the said
defendant warned them that if they refused [to] take or pay
the price of the two tickets they would not be allowed at all to
take the final examinations;
"12. As if to add insult to injury, defendant Rachelle A.
Gamurot bribed students with additional fifty points or so in
their test score in her subject just to unjustly influence and
compel them into taking the tickets;
"13. Despite the students' refusal, they were forced to take the
tickets because [of] defendant Rachelle A. Gamurot's coercion
and act of intimidation, but still many of them including the
plaintiff did not attend the dance party imposed upon them by
defendants PCST and Rachelle A. Gamurot;
"14. Plaintiff was not able to pay the price of her own two
tickets because aside form the fact that she could not afford to
pay them it is also against her religious practice as a member
of a certain religious congregation to be attending dance
parties and celebrations;
"15. On March 14, 2002, before defendant Rachelle A. Gamurot
gave her class its final examination in the subject 'Logic' she
warned that students who had not paid the tickets would not
be allowed to participate in the examination, for which threat
and intimidation many students were eventually forced to
make payments:
"16. Because plaintiff could not afford to pay, defendant
Rachelle A. Gamurot inhumanly made plaintiff sit out the
class but the defendant did not allow her to take her final
examination in 'Logic;'
"17. On March 15, 2002 just before the giving of the final
examination in the subject 'Statistics,' defendant Elissa
Baladad, in connivance with defendants Rachelle A. Gamurot
and PCST, announced in the classroom that she was not
allowing plaintiff and another student to take the examination
for their failure and refusal to pay the price of the tickets, and
thenceforth she ejected plaintiff and the other student from the
classroom;
"18. Plaintiff pleaded for a chance to take the examination but
all defendants could say was that the prohibition to give the
examinations to non-paying students was an administrative
decision;
"19. Plaintiff has already paid her tuition fees and other
obligations in the school;
"20. That the above-cited incident was not a first since PCST
also did another forced distribution of tickets to its students in
the first semester of school year 2001-2002; x x x " 22
The foregoing allegations show two causes of action; first, breach of
contract; and second, liability for tort.
Reciprocity of the
School-Student Contract
In Alcuaz v. PSBA,23 the Court characterized the relationship between
the school and the student as a contract, in which "a student, once
admitted by the school is considered enrolled for one semester."24 Two
years later, in Non v. Dames II,25 the Court modified the "termination
of contract theory" in Alcuaz by holding that the contractual
relationship between the school and the student is not only semestral
in duration, but for the entire period the latter are expected to
complete it."26 Except for the variance in the period during which the
contractual relationship is considered to subsist, both Alcuaz and Non
were unanimous in characterizing the school-student relationship as
contractual in nature.
The school-student relationship is also reciprocal. Thus, it has
consequences appurtenant to and inherent in all contracts of such
kind -- it gives rise to bilateral or reciprocal rights and obligations.
The school undertakes to provide students with education sufficient
to enable them to pursue higher education or a profession. On the
other hand, the students agree to abide by the academic requirements
of the school and to observe its rules and regulations.27
The terms of the school-student contract are defined at the moment of
its inception -- upon enrolment of the student. Standards of academic
performance and the code of behavior and discipline are usually set
forth in manuals distributed to new students at the start of every
school year. Further, schools inform prospective enrollees the amount
of fees and the terms of payment.
In practice, students are normally required to make a down payment
upon enrollment, with the balance to be paid before every
preliminary, midterm and final examination. Their failure to pay their
financial obligation is regarded as a valid ground for the school to
deny them the opportunity to take these examinations.
The foregoing practice does not merely ensure compliance with
financial obligations; it also underlines the importance of major
examinations. Failure to take a major examination is usually fatal to
the students' promotion to the next grade or to graduation.
Examination results form a significant basis for their final grades.
These tests are usually a primary and an indispensable requisite to
their elevation to the next educational level and, ultimately, to their
completion of a course.
Education is not a measurable commodity. It is not possible to
determine who is "better educated" than another. Nevertheless, a
student's grades are an accepted approximation of what would
otherwise be an intangible product of countless hours of study. The
importance of grades cannot be discounted in a setting where
education is generally the gate pass to employment opportunities and
better life; such grades are often the means by which a prospective
employer measures whether a job applicant has acquired the
necessary tools or skills for a particular profession or trade.
Thus, students expect that upon their payment of tuition fees,
satisfaction of the set academic standards, completion of academic
requirements and observance of school rules and regulations, the
school would reward them by recognizing their "completion" of the
course enrolled in.
The obligation on the part of the school has been established in
Magtibay v. Garcia,28 Licup v. University of San Carlos29 and Ateneo
de Manila University v. Garcia,30 in which the Court held that, barring
any violation of the rules on the part of the students, an institution of
higher learning has a contractual obligation to afford its students a
fair opportunity to complete the course they seek to pursue.
We recognize the need of a school to fund its facilities and to meet
astronomical operating costs; this is a reality in running it. Crystal v.
Cebu International School31 upheld the imposition by respondent
school of a "land purchase deposit" in the amount of P50,000 per
student to be used for the "purchase of a piece of land and for the
construction of new buildings and other facilities x x x which the
school would transfer [to] and occupy after the expiration of its lease
contract over its present site."
The amount was refundable after the student graduated or left the
school. After noting that the imposition of the fee was made only after
prior consultation and approval by the parents of the students, the
Court held that the school committed no actionable wrong in refusing
to admit the children of the petitioners therein for their failure to pay
the "land purchase deposit" and the 2.5 percent monthly surcharge
thereon.
In the present case, PCST imposed the assailed revenue-raising
measure belatedly, in the middle of the semester. It exacted the dance
party fee as a condition for the students' taking the final examinations,
and ultimately for its recognition of their ability to finish a course. The
fee, however, was not part of the school-student contract entered into
at the start of the school year. Hence, it could not be unilaterally
imposed to the prejudice of the enrollees.
Such contract is by no means an ordinary one. In Non, we stressed
that the school-student contract "is imbued with public interest,
considering the high priority given by the Constitution to education
and the grant to the State of supervisory and regulatory powers over
all educational institutions."32 Sections 5 (1) and (3) of Article XIV of
the 1987 Constitution provide:
"The State shall protect and promote the right of all citizens to
quality education at all levels and shall take appropriate steps
to make such declaration accessible to all.
"Every student has a right to select a profession or course of
study, subject to fair, reasonable and equitable admission and
academic requirements."
The same state policy resonates in Section 9(2) of BP 232, otherwise
known as the Education Act of 1982:
"Section 9. Rights of Students in School. – In addition to other
rights, and subject to the limitations prescribed by law and
regulations, students and pupils in all schools shall enjoy the
following rights:
xxx xxx xxx
(2) The right to freely choose their field of study subject
to existing curricula and to continue their course
therein up to graduation, except in cases of academic
deficiency, or violation of disciplinary regulations."
Liability for Tort
In her Complaint, petitioner also charged that private respondents
"inhumanly punish students x x x by reason only of their poverty,
religious practice or lowly station in life, which inculcated upon
[petitioner] the feelings of guilt, disgrace and unworthiness;"33 as a
result of such punishment, she was allegedly unable to finish any of
her subjects for the second semester of that school year and had to lag
behind in her studies by a full year. The acts of respondents
supposedly caused her extreme humiliation, mental agony and
"demoralization of unimaginable proportions" in violation of Articles
19, 21 and 26 of the Civil Code. These provisions of the law state thus:
"Article 19. Every person must, in the exercise of his rights and
in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith."
"Article 21. Any person who wilfully causes loss or injury to
another in a manner that is contrary to morals, good customs
or public policy shall compensate the latter for the damage."
"Article 26. Every person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other persons.
The following and similar acts, though they may not constitute
a criminal offense, shall produce a cause of action for
damages, prevention and other relief:
(1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or
family relations of another;
(3) Intriguing to cause another to be alienated from his
friends;
(4) Vexing or humiliating another on account of his
beliefs, lowly station in life, place of birth, physical
defect, or other personal condition."
Generally, liability for tort arises only between parties not otherwise
bound by a contract. An academic institution, however, may be held
liable for tort even if it has an existing contract with its students, since
the act that violated the contract may also be a tort. We ruled thus in
PSBA vs. CA,34 from which we quote:
"x x x A perusal of Article 2176 [of the Civil Code] shows that
obligations arising from quasi-delicts or tort, also known as
 extra-contractual obligations, arise only between parties not
otherwise bound by contract, whether express or implied.
However, this impression has not prevented this Court from
determining the existence of a tort even when there obtains a
contract. In Air France v. Carrascoso (124 Phil. 722), the private
respondent was awarded damages for his unwarranted
expulsion from a first-class seat aboard the petitioner airline. It
is noted, however, that the Court referred to the petitioner-
airline's liability as one arising from tort, not one arising form
a contract of carriage. In effect, Air France is authority for the
view that liability from tort may exist even if there is a
contract, for the act that breaks the contract may be also a tort.
x x x This view was not all that revolutionary, for even as early
as 1918, this Court was already of a similar mind. In Cangco v.
Manila Railroad (38 Phil. 780), Mr. Justice Fisher elucidated
thus: 'x x x. When such a contractual relation exists the obligor
may break the contract under such conditions that the same
act which constitutes a breach of the contract would have
constituted the source of an extra-contractual obligation had
no contract existed between the parties.'
"Immediately what comes to mind is the chapter of the Civil
Code on Human Relations, particularly Article 21 x x x."35
Academic Freedom
In their Memorandum, respondents harp on their right to "academic
freedom." We are not impressed. According to present jurisprudence,
academic freedom encompasses the independence of an academic
institution to determine for itself (1) who may teach, (2) what may be
taught, (3) how it shall teach, and (4) who may be admitted to
study.36 In Garcia v. the Faculty Admission Committee, Loyola School
of Theology,37 the Court upheld the respondent therein when it
denied a female student's admission to theological studies in a
seminary for prospective priests. The Court defined the freedom of an
academic institution thus: "to decide for itself aims and objectives and
how best to attain them x x x free from outside coercion or
interference save possibly when overriding public welfare calls for
some restraint."38
In Tangonan v. Paño,39 the Court upheld, in the name of academic
freedom, the right of the school to refuse readmission of a nursing
student who had been enrolled on probation, and who had failed her
nursing subjects. These instances notwithstanding, the Court has
emphasized that once a school has, in the name of academic freedom,
set its standards, these should be meticulously observed and should
not be used to discriminate against certain students.40 After accepting
them upon enrollment, the school cannot renege on its contractual
obligation on grounds other than those made known to, and accepted
by, students at the start of the school year.
In sum, the Court holds that the Complaint alleges sufficient causes of
action against respondents, and that it should not have been
summarily dismissed. Needless to say, the Court is not holding
respondents liable for the acts complained of. That will have to be
ruled upon in due course by the court a quo.
WHEREFORE, the Petition is hereby GRANTED, and the assailed
Orders REVERSED. The trial court is DIRECTED to reinstate the
Complaint and, with all deliberate speed, to continue the proceedings
in Civil Case No. U-7541. No costs.
SO ORDERED.
G.R. No. 125356 November 21, 2001
SUPREME TRANSLINER INC., FELIPE SIA and NOVENCIO
FLORES, petitioners,
vs.
HON. COURT OF APPEALS, GLORIA BRAZAL and minor LOTIS
BRAZAL, represented by her father, NOEL BRAZAL, respondents.
QUISUMBING, J.:
This petition seeks to annul the decision1 dated September 21, 1995, of
the Court of Appeals in CA G.R. No. 39784, and its resolution2 dated
June 18, 1996 denying petitioners' motion for reconsideration.
Petitioners Supreme Transliner Inc. and Felipe Sia are the registered
owners of a bus driven by co-petitioner Novencio Flores. On
September 24, 1990, the bus collided with a passenger jeepney
carrying private respondents Gloria and Lotis Brazal. At the time of
the incident, the jeepney was owned and registered in the name of
Marcelino Villones and driven by Reynaldo Decena.
As a result of the collision, private respondents suffered injuries. They
instituted Civil Case No. SP-3312 for damages against petitioners
based on quasi-delict and against Villones and Decena for breach of
contract. Petitioners, in turn, filed a third-party complaint against
Country Bankers Insurance Company, insurer of the Supreme
Transliner bus.
During the trial, Gloria Brazal testified that on September 24, 1990, she
and her daughter Lotis were on board the passenger jeepney when
the Supreme Transliner bus hit it, causing them injuries that required
medical treatment.
Decena and Villones testified on their own behalf and presented
Luzviminda Malabanan and Sgt. Nicolas M. Roxas as witnesses.
Decena recounted that on September 24, 1990, at about 2:00 P.M., he
was driving a passenger jeepney bound for Candelaria, Quezon. On
board, the jeepney was about fifteen passengers, including private
respondents Gloria and Lotis Brazal. Upon reaching Sampaloc,
Sariaya, Quezon, a Supreme Transliner bus coming from the opposite
direction, suddenly appeared on a curved portion of the road and
overtook another jeepney, which it was then following. Thereafter, the
bus collided with Decena's jeepney.1âwphi1.nêt
Petitioners presented Novencio Flores and Moises Alvarez, the
Manager of Supreme Transliner. Both testified that the passenger
jeepney was running very fast when the accident occurred. On the
third-party complaint, petitioners showed that they already submitted
the required documents for insurance claim and that Country Bankers
Insurance Company promised to settle the claim, but did not.
On October 28, 1992, the trial court rendered its judgment, the
dispositive portion of which reads:
WHEREFORE, finding that the plaintiffs [have] established by
preponderance of evidence the allegations of the complaint,
judgment is hereby rendered:
ON THE COMPLAINT:
1. Ordering the defendants Felipe Sia, as registered owner of
the Supreme Bus, and Novencio Flores primarily liable for the
damages of the plaintiffs and directing them to jointly and
severally pay plaintiffs the following:
a. The amount of TWENTY FIVE THOUSAND PESOS
(P25,000.00) by way of actual damages;
b. The amount of P10,000.00 by way of moral damages;
c. The amount of P5,000.00 as attorney's fees.
On the third-party complaint, judgment is hereby rendered
ordering the third-party defendant to pay the third-party
plaintiffs any and all amounts that they have paid to the
plaintiffs by reason of this decision provided it does not
exceed P50,000.00.
Third-party defendant is also ordered to pay the costs.
SO ORDERED.3
The trial court declared that Flores was negligent in operating the bus,
while Sia failed to exercise the diligence of a good father of a family in
the choice, supervision and direction of his employees.
On the third-party complaint, the trial court found that Supreme
Transliner had insured the bus with Country Bankers, paid the
premiums for the period covering the accident, and made an
insurance claim by notifying the insurer and submitting the required
documents. However, until the filing of the complaint, Country
Bankers had not acted upon Supreme Transliner's claim. The trial
court ordered Country Bankers to pay third-party plaintiffs an
amount not exceeding P50,000.
Petitioners appealed to the Court of Appeals where they maintained
that the trial court erred in: (a) pronouncing them liable to private
respondents; (b) awarding the amount of P25,000 as actual damages;
and (c) finding Sia solidarily liable with driver Flores. Country
Bankers Insurance Company filed on July 5, 1994, a manifestation and
motion wherein it stated that it had already settled its maximum
liability under the policy, and therefore prayed for its exclusion from
the case.
On September 21, 1995, the Court of Appeals promulgated its
decision, decreeing as follows:
WHEREFORE, the appealed judgment is AFFIRMED subject
to the Manifestation and Motion filed by third-party
defendant as discussed in the text of herein decision.
Costs against defendant-third party appellant Felipe Sia and
defendant-appellant Novencio C. Flores.
SO ORDERED.4
The Court of Appeals found that there was competent and
preponderant evidence which showed that driver Novencio Flores'
negligence was the proximate cause of the mishap and that Felipe Sia
failed to perform the required degree of care in the selection and
supervision of the bus driver. It also found that the actual damages
representing the medical expenses incurred by private respondents
were properly supported by receipts.
Petitioners filed a motion for reconsideration but this was denied.
Hence, this petition, where petitioners raise the following issues:
I plaintiff or defendant, who asserts the affirmative of the issue has the
ARE EVIDENCES (SIC) IN THE RECORDS OF THE CASE
BUT NOT OFFERED BY A P ARTY LITIGANT BE
CONSIDERED IN THE LATTER'S FAVOR?
II
ARE EVIDENCES (SIC) ADDUCED BY A CO-DEFENDANT
BE CONSIDERED AS EVIDENCES (SIC) OF THE PLAINTIFF
AS AGAINST THE OTHER DEFENDANT?5
Petitioners aver that the Court of Appeals erred in affirming the trial
court's decision which was mainly based on the evidence proffered by
their co-defendants Decena and Villones. Petitioners contend that this
evidence, which proved their liability for quasi-delict, could not be
appreciated against them because the same was not adopted, much
less offered in evidence by private respondents. Neither did Decena
and Villones file a cross-claim against them. Consequently, in
accordance with Section 1,6 Rule 131 and Sections 347 and 358, Rule
132 of the Rules of Court, said evidence was placed beyond the court's
consideration, hence they could not be held liable on the basis thereof.
Private respondents contend that Philippine courts are not only courts
of law but of equity and justice as well. The Court of Appeals, being a
court of record, has to appreciate all the facts and evidence before it in
determining the parties' rights and liabilities regardless of who among
the litigants actually presented the same. Further, they point out that
the issue is being raised for the first time, thus it is highly improper to
nullify or reverse the Court of Appeals' decision based solely on a
completely new and foreign ground.
For our resolution are the following issues: (a) Who has the burden of
proving herein petitioners' liability? (b) May the evidence presented
by Decena and Villones be considered in determining preponderance
of evidence against herein petitioners?
Burden of proof is the duty of a party to present evidence to establish
his claim or defense by the amount of evidence required by law,
which is preponderance of evidence in civil cases.9 The party, whether
burden of proof to obtain a favorable judgment. For the defendant, an
affirmative defense is one which is not a denial of an essential
ingredient in the plaintiffs cause of action, but one which, if
established, will be a good defense - i.e. an "avoidance" of the claim.10
In this case, both private respondents as well as the jeepney driver
Reynaldo Decena and its owner Marcelino Villones claim that the bus
driver, Novencio Flores, was liable for negligently operating the bus.
For private respondents, the claim constitutes their cause of action
against petitioners which said private respondents must prove by
preponderance of evidence. At the same time, the same claim is a
matter of affirmative defense on the part of Decena and Villones who
are impleaded as co-defendants of petitioners. Therefore, both private
respondents as well as the said co-defendants had the burden of
proving petitioners' negligence by the quantum of proof required to
establish the latter's liability, i.e. by preponderance of evidence.
On the second issue, we rule in the affirmative. The evidence
presented by the jeepney owner and its driver, Villones and Decena,
forms part of the totality of the evidence concerning the negligence
committed by petitioners as defendants in quasi-delict case.
Preponderance of evidence is determined by considering all the facts
and circumstances of the case, culled from the evidence, regardless of
who actually presented it.11 Petitioners' liability were proved by the
evidence presented by Decena and Villones at the trial, taken together
with the evidence presented by the victims of the collision, namely
herein private respondents Gloria and Lotis Brazal.
We find petitioners' reliance on Sections 34 and 35 of Rule 132 of the
Rules of Court misplaced. Petitioners cited these rules to support their
allegation that evidence by Decena and Villones should not be
considered in private respondents' favor since the latter did not adopt
much less offer them in evidence. Nothing in Section 34 requires that
the evidence be offered or adopted by a specific party before it could
be considered in his favor. It is enough that the evidence is offered for
the court's consideration. We find, moreover, no pertinence in
petitioners' invocation of Rule 35, on when to make an offer, except to
indicate to us petitioners' reliance on inapplicable technicalities that
betray the lack of merit of their petition.
WHEREFORE, the instant petition is DENIED. The decision and
resolution dated September 21, 1995 and June 18, 1996, respectively,
of the Court of Appeals are hereby AFFIRMED.
Costs against petitioners.1âwphi1.nêt
SO ORDERED.
[G.R. No. 95582. October 7, 1991.]
DANGWA TRANSPORTATION CO., INC. and THEODORE
LARDIZABAL y MALECDAN, Petitioners, v. COURT OF
APPEALS
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; FACTUAL FINDINGS OF THE
COURT OF APPEALS; RULE AND EXCEPTION. — It is an
established principle that the factual findings of the Court of Appeals
as a rule are final and may not be reviewed by this Court on appeal.
However, this is subject to settle exceptions, one which is when the
findings of the appellate court are contrary to those of the trial court,
in which case a reexamination of the facts and evidence may be
undertaken.
2. CIVIL LAW; COMMON CARRIERS; LIABLE FOR INJURIES
SUFFERED BY BOARDING PASSENGERS RESULTING FROM THE
PREMATURE ACCELERATION OF THEIR CONVEYANCES. — The
contention of petitioners that the driver and the conductor had no
knowledge that the victim would ride on the bus, since the latter had
supposedly not manifested his intention to board the same, does not
merit consideration. When the bus is not motion there is no necessity
for a person who wants to ride the same to signal his intention to
board. A public utility bus, once it stops, is in effect making a
continuous offer to bus riders. Hence, it becomes the duty of the
driver and the conductor, every time the bus stops, to do no act that
would have the effect of increasing the peril to a passenger while he
was attempting to board the same. The premature acceleration of the
bus in this case was a breach of such duty. It is the duty of common
carriers of passengers, including common carriers by railroad train,
streetcar, or motorbus, to stop their conveyances a reasonable length
of time in order to afford passengers an opportunity to board and
enter, and they are liable for injuries suffered by boarding passengers
resulting from the sudden starting up or jerking of their conveyances
while they are doing so.
3. ID.; ID.; ID.; BOARDING AND ALIGHTING FROM A SLOWLY
MOVING VEHICLE; NOT A NEGLIGENCE PER SE. — It is not
negligence per se, or as a matter of law, for one to attempt to board a
train or streetcar which is moving slowly. An ordinarily prudent
person would have made the attempt to board the moving
conveyance under the same or similar circumstances. The fact that
passengers board and alight from a slowly moving vehicle is a matter
of common experience and both the driver and conductor in this case
could not have been unaware of such an ordinary practice.
4. ID.; ID.; ID.; LIABILITY THEREOF; EXTENDS TO PERSONS
BOARDING THE VEHICLE AS WELL AS THOSE ALIGHTING
THEREFROM. — The victim herein, by stepping and standing on the
platform of the bus, is already considered a passenger and is entitled
to all the rights and protection pertaining to such a contractual
relation. Hence, it has been held that the duty which the carrier of
passengers owes to its patrons extends to persons boarding the cars as
well as to those alighting therefrom. (Del Prado v. Manila Electric Co.,
supra.)
5. ID.; ID.; ID.; BOUND TO OBSERVE EXTRAORDINARY
DILIGENCE FOR THE SAFETY OF THE PASSENGERS
TRANSPORTED BY THEM. — Common carriers, from the nature of
their business and for reasons of public policy, are bound to observe
extraordinary diligence for the safety of the passengers transported by
them, according to all the circumstances of each case. A common
carrier is bound to carry the passengers safely as far as human care
and foresight can provide, using the utmost diligence of very cautious
persons, with a due regard for all the circumstances. (Art. 1755, Civil
Code.)
6. ID.; DAMAGES; ACTION BASED ON A CONTRACT OF
CARRIAGE; FINDING OF FAULT OR NEGLIGENCE ON THE
PART OF CARRIER NEED NOT BE EXPRESS. — It has also been
repeatedly held that in an action based on a contract of carriage, the
court need not make an express finding of fault or negligence on the
part of the carrier in order to hold it responsible to pay the damages
sought by the passenger. By the contract of carriage, the carrier
assumes the express obligation to transport the passenger to
destination safety and to observe extraordinary diligence with a cure
regard for all the circumstances, and any injury that might be suffered
by the passenger is right away attributable to the fault or negligence
of the carrier. This is an exception to the general rule that negligence
must be proved, and it is therefore incumbent upon the carrier to
prove that it has exercised extraordinary diligence as prescribed in
Articles 1733 and 1755 of the Civil Code.
7. ID.; ID.; ID.; ACTUAL OR COMPENSATORY DAMAGES; RULE
IN DETERMINING THE AMOUNT THEREOF. — With respect to the
award of damages, an oversight was, however, committed by
respondent Court of Appeals in computing the actual damages based
on the gross income of the victim. The rule is that the amount
recoverable by the heirs of a victim of a tort is not the loss of the entire
earnings, but rather the loss of that portion of the earnings which the
beneficiary would have received. In other words, only net earnings,
not gross earnings, are to be considered, that is, the total of the
earnings less expenses necessary in the creation of such earnings or
income and minus living and other incidental expenses.
DECISION
REGALADO, J.:
On May 13, 1985, private respondents filed a complaint 1 for damages
against petitioners for the death of Pedrito Cudiamat as a result of a
vehicular accident which occurred on March 25, 1985 at Marivic,
Sapid, Mankayan, Benguet. Among others, it was alleged that on said
date, while petitioner Theodore M. Lardizabal was driving a
passenger bus belonging to petitioner corporation in a reckless and
imprudent manner and without due regard to traffic rules and
regulations and safety to persons and property, it ran over its
passenger, Pedrito Cudiamat. However, instead of bringing Pedrito
immediately to the nearest hospital, the said driver, in utter bad faith
and without regard to the welfare of the victim, first brought his other
passengers and cargo to their respective destinations before bringing
said victim to the Lepanto Hospital where he expired.
On the other hand, petitioners alleged that they had observed and
continued to observe the extraordinary diligence required in the
operation of the transportation company and the supervision of the
employees, even as they add that they are not absolute insurers of the
safety of the public at large. Further, it was alleged that it was the
victim’s own carelessness and negligence which gave rise to the
subject incident, hence they prayed for the dismissal of the complaint
plus an award of damages in their favor by way of a counterclaim.
On July 29, 1988, the trial court rendered a decision, effectively in
favor of petitioners, with this decretal portion:jgc:chanrobles.com.ph
"IN VIEW OF ALL THE FOREGOING, judgment is hereby
pronounced that Pedrito Cudiamat was negligent, which negligence
was the proximate cause of his death. Nonetheless, defendants in
equity, are hereby ordered to pay the heirs of Pedrito Cudiamat the
sum of P10,000.00 which approximates the amount defendants
initially offered said heirs for the amicable settlement of the case. No
costs.
"SO ORDERED." 2
Not satisfied therewith, private respondents appealed to the Court of
Appeals which, in a decision 3 in CA-G.R CV No. 19504 promulgated
on August 14, 1990, set aside the decision of the lower court, and
ordered petitioners to pay private respondents:
"1. The sum of Thirty Thousand (P30,000.00) Pesos by way of
indemnity for death of the victim Pedrito Cudiamat;
2. The sum of Twenty Thousand (P20,000.00) by way of moral
damages;
3. The sum of Two Hundred Eighty Eight Thousand (P288,000.00)
Pesos as actual and compensatory damages;
4. The costs of this suit." 4
Petitioners’ motion for reconsideration was denied by the Court of
Appeals in its resolution dated October 4, 1990, 5 hence this petition
with the central issue herein being whether respondent court erred in
reversing the decision of the trial court and in finding petitioners
negligent and liable for the damages claimed.
It is an established principle that the factual findings of the Court of
Appeals as a rule are final and may not be reviewed by this Court on
appeal. However, this is subject to settled exceptions, one of which is
when the findings of the appellate court are contrary to those of the
trial court, in which case a reexamination of the facts and evidence
may be undertaken. 6
In the case at bar, the trial court and the Court of Appeals have
discordant positions as to who between the petitioners and the victim
is guilty of negligence. Perforce, we have had to conduct an
evaluation of the evidence in this case for the proper calibration of
their conflicting factual findings and legal conclusions.
The lower court, in declaring that the victim was negligent, made the
following findings:
"This Court is satisfied that Pedrito Cudiamat was negligent in trying
to board a moving vehicle, especially with one of his hands holding
an umbrella. And, without having given the driver or the conductor
any indication that he wishes to board the bus. But defendants can
also be found wanting of the necessary diligence. In this connection, it
is safe to assume that when the deceased Cudiamat attempted to
board defendants’ bus, the vehicle’s door was open instead of being
closed. This should be so, for it is hard to believe that one would even
attempt to board a vehicle (i)n motion if the door of said vehicle is
closed. Here lies the defendant’s lack of diligence. Under such
circumstances, equity demands that there must be something given to
the heirs of the victim to assuage their feelings. This, also considering
that initially, defendant common carrier had made overtures to
amicably settle the case. It did offer a certain monetary consideration
to the victim’s heirs." 7
However, respondent court, in arriving at a different opinion,
declares that:
"From the testimony of appellees’ own witness in the person of
Vitaliano Safarita, it is evident that the subject bus was at full stop
when the victim Pedrito Cudiamat boarded the same as it was
precisely on this instance where a certain Miss Abenoja alighted from
the bus. Moreover, contrary to the assertion of the appellees, the
victim did indicate his intention to board the bus as can be seen from
the testimony of the said witness when he declared that Pedrito
Cudiamat was no longer walking and made a sign to board the bus
when the latter was still at a distance from him. It was at the instance
when Pedrito Cudiamat was closing his umbrella at the platform of
the bus when the latter made a sudden jerk movement (as) the driver
commenced to accelerate the bus.
"Evidently, the incident took place due to the gross negligence of the
appellee-driver in prematurely stepping on the accelerator and in not
waiting for the passenger to first secure his seat especially so when we
take into account that the platform of the bus was at the time slippery
and wet because of a drizzle. The defendants-appellees utterly failed
to observe their duty and obligation as common carrier to the end that
they should observe extra-ordinary diligence in the vigilance over the
goods and for the safety of the passengers transported by them
according to the circumstances of each case (Article 1733, New Civil
Code)." 8
After a careful review of the evidence on record, we find no reason to
disturb the above holding of the Court of Appeals. Its aforesaid
findings are supported by the testimony of petitioners own witnesses.
One of them, Virginia Abalos, testified on cross-examination as
follows:
"Q It is not a fact Madam witness, that at bunkhouse 54, that is before
the place of the incident, there is a crossing?
A The way going to the mines but it is not being pass(ed) by the bus.
Q And the incident happened before bunkhouse 56, is that not
correct?
A It happened between 54 and 53 bunkhouses." 9
The bus conductor, Martin Anglog, also declared:
"Q When you arrived at Lepanto on March 25, 1985, will you please
inform this Honorable Court if there was any unusual incident that
occurred?
A When we delivered a baggage at Marivic because a person alighted
there between Bunkhouse 53 and 54.
Q What happened when you delivered this passenger at this
particular place in Lepanto?
A When we reached the place, a passenger alighted and I signalled
my driver. When we stopped we went out because I saw an umbrella
about a split second and I signalled again the driver, so the driver
stopped and we went down and we saw Pedrito Cudiamat asking for
help because he was lying down.
Q How far away was this certain person, Pedrito Cudiamat, when
you saw him lying down — from the bus how far was he?
A It is about two to three meters.
Q On what direction of the bus was he found about three meters from
the bus, was it at the front or at the back?
A At the back, sir." 10 (Emphasis supplied.)
The foregoing testimonies show that the place of the accident and the
place where one of the passengers alighted were both between
Bunkhouses 53 and 54, hence the finding of the Court of Appeals that
the bus was at full stop when the victim boarded the same is correct.
They further confirm the conclusion that the victim fell from the
platform of the bus when it suddenly accelerated forward and was
run over by the rear right tires of the vehicle, as shown by the
physical evidence on where he was thereafter found in relation to the
bus when it stopped. Under such circumstances, it cannot be said that
the deceased was guilty of negligence.
The contention of petitioners that the driver and the conductor had no
knowledge that the victim would ride on the bus, since the latter had
supposedly not manifested his intention to board the same, does not
merit consideration. When the bus is not in motion there is no
necessity for a person who wants to ride the same to signal his
intention to board. A public utility bus, once it stops, is in effect
making a continuous offer to bus riders. Hence, it becomes the duty of
the driver and the conductor, every time the bus stops, to do no act
that would have the effect of increasing the peril to a passenger while
he was attempting to board the same. The premature acceleration of
the bus in this case was a breach of such duty.
It is the duty of common carriers of passengers, including common
carriers by railroad train, streetcar, or motorbus, to stop their
conveyances a reasonable length of time in order to afford passengers
an opportunity to board and enter, and they are liable for injuries
suffered by boarding passengers resulting from the sudden starting
up or jerking of their conveyances while they are doing so.
Further, even assuming that the bus was moving, the act of the victim
in boarding the same cannot be considered negligent under the
circumstances. As clearly explained in the testimony of the aforestated
witness for petitioners, Virginia Abalos, the bus had "just started" and
"was still in slow motion" at the point where the victim had boarded
and was on its platform.
It is not negligence per se, or as a matter of law, for one to attempt to
board a train or streetcar which is moving slowly. 14 An ordinarily
prudent person would have made the attempt to board the moving
conveyance under the same or similar circumstances. The fact that
passengers board and alight from a slowly moving vehicle is a matter
of common experience and both the driver and conductor in this case
could not have been unaware of such an ordinary practice.
The victim herein, by stepping and standing on the platform of the
bus, is already considered a passenger and is entitled to all the rights
and protection pertaining to such a contractual relation. Hence, it has
been held that the duty which the carrier of passengers owes to its
patrons extends to persons boarding the cars as well as to those
alighting therefrom.
Common carriers, from the nature of their business and for reasons of
public policy, are bound to observe extraordinary diligence for the
safety of the passengers transported by them, according to all the
circumstances of each case. 16 A common carrier is bound to carry the
passengers safely as far as human care and foresight can provide,
using the utmost diligence of very cautious persons, with a due
regard for all the circumstances.
It has also been repeatedly held that in an action based on a contract
of carriage, the court need not make an express finding of fault or
negligence on the part of the carrier in order to hold it responsible to
pay the damages sought by the passenger. By the contract of carriage,
the carrier assumes the express obligation to transport the passenger
to his destination safely and to observe extraordinary diligence with a
due regard for all the circumstances, and any injury that might be
suffered by the passenger is right away attributable to the fault or
negligence of the carrier. This is an exception to the general rule that
negligence must be proved, and it is therefore incumbent upon the
carrier to prove that it has exercised extraordinary diligence as
prescribed in Articles 1733 and 1755 of the Civil Code.
Moreover, the circumstances under which the driver and the
conductor failed to bring the gravely injured victim immediately to
the hospital for medical treatment is a patent and incontrovertible
proof of their negligence. It defies understanding and can even be
stigmatized as callous indifference. The evidence shows that after the
accident the bus could have forthwith turned at Bunk 56 and thence to
the hospital, but its driver instead opted to first proceed to Bunk 70 to
allow a passenger to alight and to deliver a refrigerator, despite the
serious condition of the victim. The vacuous reason given by
petitioners that it was the wife of the deceased who caused the delay
was tersely and correctly confuted by respondent
court:jgc:chanrobles.com.ph
". . . The pretension of the appellees that the delay was due to the fact
that they had to wait for about twenty minutes for Inocencia
Cudiamat to get dressed deserves scant consideration. It is rather
scandalous and deplorable for a wife whose husband is at the verge of
dying to have the luxury of dressing herself up for about twenty
minutes before attending to help her distressed and helpless
husband." 19
Further, it cannot be said that the main intention of petitioner
Lardizabal in going to Bunk 70 was to inform the victim’s family of
the mishap, since it was not said bus driver nor the conductor but the
companion of the victim who informed his family thereof. 20 In fact, it
was only after the refrigerator was unloaded that one of the
passengers thought of sending somebody to the house of the victim,
as shown by the testimony of Virginia Abalos again, to wit:
health with a remaining productive life expectancy of 12 years, and
then earning P24,000.00 a year. Using the gross annual income as the
basis, and multiplying the same by 12 years, it accordingly awarded
P288,000. Applying the aforestated rule on computation based on the
net earnings, said award must be, as it hereby is, rectified and
reduced to P216,000.00. However, in accordance with prevailing
jurisprudence, the death indemnity is hereby increased to P50,000.00.

"Q Why, what happened to your refrigerator at that particular time?
A I asked them to bring it down because that is the nearest place to
our house and when I went down and asked somebody to bring
down the refrigerator, I also asked somebody to call the family of Mr.
Cudiamat.
WHEREFORE, subject to the above modifications, the challenged
judgment and resolution of respondent Court of Appeals are hereby
AFFIRMED in all other respects.
SO ORDERED.

COURT:

Q Why did you ask somebody to call the family of Mr. Cudiamat?

A Because Mr. Cudiamat met an accident, so I ask somebody to call

for the family of Mr. Cudiamat.

Q But nobody ask(ed) you to call for the family of Mr. Cudiamat?

A No sir."

With respect to the award of damages, an oversight was, however,

committed by respondent Court of Appeals in computing the actual
damages based on the gross income of the victim. The rule is that the
amount recoverable by the heirs of a victim of a tort is not the loss of
the entire earnings, but rather the loss of that portion of the earnings
which the beneficiary would have received. In other words, only net
earnings, not gross earnings, are to be considered, that is, the total of
the earnings less expenses necessary in the creation of such earnings
or income and minus living and other incidental expenses.

We are of the opinion that the deductible living and other expense of
the deceased may fairly and reasonably be fixed at P500.00 a month or
P6,000.00 a year. In adjudicating the actual or compensatory damages,
respondent court found that the deceased was 48 years old, in good