G.R. No. 159270. August 22, 2005 5.
5. Accidents or damages to the toll facilities arising out of any activity related to this
PHILIPPINE NATIONAL CONSTRUCTION CORPORATION, Petitioners,
vs.
HON. COURT OF APPEALS, RODRIGO ARNAIZ, REGINA LATAGAN, RICARDO
GENERALAO and PAMPANGA SUGAR DEVELOPMENT COMPANY, INC.,
CORPORATION, Respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Decision of the Court of Appeals (CA) in
1 
CA-G.R. CV No. 47699 affirming, with modification, the decision of the Regional Trial
Court (RTC) of Manila in Civil Case No. 93-64803.
The Antecedents
Pampanga Sugar Development Company, Inc. (PASUDECO) transports sugarcane from
Mabalacat and Magalang, Pampanga. When the Mount Pinatubo eruption of 1991
heavily damaged the national bridges along Abacan-Angeles and Sapang
Maragul via Magalang, Pampanga, it requested permission from the Toll Regulatory
Board (TRB) for its trucks to enter and pass through the North Luzon Expressway
(NLEX) via Dau-Sta. Ines from Mabalacat, and via Angeles from Magalang, and exit at
San Fernando going to its milling factory. The TRB furnished the Philippine National
2  around 4:00 a.m., five (5) PASUDECO men arrived, and started clearing the highway of
Construction Corporation (PNCC) (the franchisee that operates and maintains the toll
facilities in the North and South Luzon Toll Expressways) with a copy of the said request
for it to comment thereon. 3
On November 5, 1991, TRB and PASUDECO entered into a Memorandum of
Agreement (MOA), where the latter was allowed to enter and pass through the NLEX on
4 
the following terms and conditions:
1. PASUDECO trucks should move in convoy;
2. Said trucks will stay on the right lane;
3. A vehicle with blinking lights should be assigned at the rear end of the convoy with a
sign which should read as follows: Caution: CONVOY AHEAD!!!;
4. Tollway safety measures should be properly observed;
approval shall be the responsibility of PASUDECO;
6. PASUDECO shall be responsible in towing their stalled trucks immediately to avoid
any inconvenience to the other motorists;
7. This request will be in force only while the national bridges along Abacan-Angeles and
Sapang Maragul via Magalang remain impassable.
PASUDECO furnished the PNCC with a copy of the MOA. In a Letter dated October 22,
5  6 
1992, the PNCC informed PASUDECO that it interposed no objection to the MOA.
At around 2:30 a.m. on January 23, 1993, Alex Sendin, the PNCC security supervisor,
and his co-employees Eduardo Ducusin and Vicente Pascual were patrolling Km. 72
going north of the NLEX. They saw a pile of sugarcane in the middle portion of the north
and southbound lanes of the road. They placed lit cans with diesel oil in the north and
7 
southbound lanes, including lane dividers with reflectorized markings, to warn motorists
of the obstruction. Sendin, Ducusin and Pascual proceeded to the PASUDECO office,
believing that the pile of sugarcane belonged to it since it was the only milling company
in the area. They requested for a payloader or grader to clear the area. However,
Engineer Oscar Mallari, PASUDECO’s equipment supervisor and transportation
superintendent, told them that no equipment operator was available as it was still very
early. Nonetheless, Mallari told them that he would send someone to clear the affected
8 
area. Thereafter, Sendin and company went back to Km. 72 and manned the traffic. At
the sugarcane. They stacked the sugarcane at the side of the road. The men left the
area at around 5:40 a.m., leaving a few flattened sugarcanes scattered on the road. As
the bulk of the sugarcanes had been piled and transferred along the roadside, Sendin
thought there was no longer a need to man the traffic. As dawn was already
approaching, Sendin and company removed the lighted cans and lane dividers. Sendin 9 
went to his office in Sta. Rita, Guiguinto, Bulacan, and made the necessary report. 10
At about 6:30 a.m., Rodrigo S. Arnaiz, a certified mechanic and marketing manager of
JETTY Marketing, Inc., was driving his two-door Toyota Corolla with plate number FAG
11 
961 along the NLEX at about 65 kilometers per hour. He was with his sister Regina
12 
Latagan, and his friend Ricardo Generalao; they were on their way to Baguio to attend
their grandmother’s first death anniversary. As the vehicle ran over the scattered
13 
sugarcane, it flew out of control and turned turtle several times. The accident threw the
car about fifteen paces away from the scattered sugarcane.
Police Investigator Demetrio Arcilla investigated the matter and saw black and white
sugarcanes on the road, on both lanes, which appeared to be flattened. 14
On March 4, 1993, Arnaiz, Latagan and Generalao filed a complaint for damages
15 
the Central Azucarrera de Tarlac; it was only through the expressway that a vehicle
20 

against PASUDECO and PNCC in the RTC of Manila, Branch 16. The case was could access these three (3) sugar centrals; and PASUDECO was obligated to clear
21 

docketed as Civil Case No. 93-64803. They alleged, inter alia, that through its spillages whether the planters’ truck which caused the spillage was bound for
negligence, PNCC failed to keep and maintain the NLEX safe for motorists when it PASUDECO, ARCAM or Central Azucarera. 22

allowed PASUDECO trucks with uncovered and unsecured sugarcane to pass through it;
that PASUDECO negligently spilled sugarcanes on the NLEX, and PNCC failed to put up On rebuttal, PNCC adduced evidence that only planters’ trucks with "PSD" markings
emergency devices to sufficiently warn approaching motorists of the existence of such were allowed to use the tollway; that all such trucks would surely enter the PASUDECO
23 

spillage; and that the combined gross negligence of PASUDECO and PNCC was the compound. Thus, the truck which spilled sugarcane in January 1993 in Km. 72 was on its
direct and proximate cause of the injuries sustained by Latagan and the damage to way to the PASUDECO compound. 24

Arnaiz’s car. They prayed, thus:

On November 11, 1994, the RTC rendered its decision in favor of Latagan, dismissing
25 

WHEREFORE, it is respectfully prayed that, after due hearing, judgment be rendered for that of Arnaiz and Generalao for insufficiency of evidence. The case as against the
the plaintiffs, ordering the defendants jointly and severally: PNCC was, likewise, dismissed. The decretal portion of the decision reads:

(a) To pay unto plaintiff Rodrigo Arnaiz the sum of ₱100,000.00 representing the value of WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
his car which was totally wrecked;
I. ORDERING defendant PASUDECO:
(b) to pay unto plaintiff Regina Latagan the sum of ₱100,000.00 by way of
reimbursement for medical expenses, the sum of ₱50,000.00 by way of moral damages, 1. To pay plaintiff Regina Latagan:
and the sum of ₱30,000.00 by way of exemplary damages;
a. ₱25,000 = for actual damages
(c) To pay unto plaintiffs Rodrigo Arnaiz and Ricardo Generalao the sum of ₱5,000.00 by
way of reimbursement for medical expenses; and
b. ₱15,000 = for moral damages
(d) To pay unto the plaintiffs the sum of ₱30,000.00 by way of attorney’s fees; plus the
c. ₱10,000 = for attorney’s fees
costs of suit.
₱50,000
Plaintiffs pray for other reliefs which the Honorable Court may find due them in the
premises. 16

2. To pay costs of suit.

In its Answer, PNCC admitted that it was under contract to manage the North Luzon
17 

Expressway, to keep it safe for motorists. It averred that the mishap was due to the II. The case is DISMISSED as to defendant PNCC. No pronouncement as to costs. Its
"unreasonable speed" at which Arnaiz’s car was running, causing it to turn turtle when it counterclaim is, likewise, DISMISSED.
passed over some pieces of flattened sugarcane. It claimed that the proximate cause of
the mishap was PASUDECO’s gross negligence in spilling the sugarcane, and its failure III. The claims for damages of plaintiffs Rodrigo Arnaiz and Ricardo Generalao are
to clear and mop up the area completely. It also alleged that Arnaiz was guilty of hereby DISMISSED for insufficiency of evidence.
contributory negligence in driving his car at such speed.
SO ORDERED. 26

The PNCC interposed a compulsory counterclaim against the plaintiffs and cross-
18 

claim against its co-defendant PASUDECO.

19  Both the plaintiffs Arnaiz, Latagan and Generalao and defendant PASUDECO appealed
the decision to the CA. Since the plaintiffs failed to file their brief, the CA dismissed their
PASUDECO adduced evidence that aside from it, there were other sugarcane mills in appeal. 27

the area, like the ARCAM Sugar Central (formerly known as Pampanga Sugar Mills) and
Resolving PASUDECO’s appeal, the CA rendered judgment on April 29, 2003, affirming
the RTC decision with modification. The appellate court ruled that Arnaiz was negligent
in driving his car, but that such negligence was merely contributory to the cause of the
mishap, i.e., PASUDECO’s failure to properly supervise its men in clearing the affected
area. Its supervisor, Mallari, admitted that he was at his house while their men were
clearing Km. 72. Thus, the appellate court held both PASUDECO and PNCC, jointly and
severally, liable to Latagan. The decretal portion of the decision reads:
WHEREFORE, premises considered, the assailed DECISION is hereby MODIFIED and
judgment is hereby rendered declaring PASUDECO and PNCC, jointly and solidarily,
liable:
1. To pay plaintiff Regina Latagan:
a. ₱25,000 = for actual damages
b. ₱15,000 = for moral damages
c. ₱10,000 = for attorney’s fees
2. To pay costs of suit.
SO ORDERED.  28
The PNCC, now the petitioner, filed a petition for review on certiorari under Rule 45 of
the Revised Rules of Court, alleging that:
THE HONORABLE COURT OF APPEALS ERRED IN MODIFYING THE DECISION OF
THE TRIAL COURT AND MAKING PETITIONER PNCC, JOINTLY AND [SOLIDARILY],
LIABLE WITH PRIVATE RESPONDENT PASUDECO. 29
The petitioner asserts that the trial court was correct when it held that PASUDECO
should be held liable for the mishap, since it had assumed such responsibility based on
the MOA between it and the TRB. The petitioner relies on the trial court’s finding that
only PASUDECO was given a permit to pass through the route.
The petitioner insists that the respondents failed to prove that it was negligent in the
operation and maintenance of the NLEX. It maintains that it had done its part in clearing
the expressway of sugarcane piles, and that there were no more piles of sugarcane
along the road when its men left Km. 72; only a few scattered sugarcanes flattened by
the passing motorists were left. Any liability arising from any mishap related to the spilled
sugarcanes should be borne by PASUDECO, in accordance with the MOA which
provides that "accidents or damages to the toll facilities arising out of any activity related
to this approval shall be the responsibility of PASUDECO."
The petitioner also argues that the respondents should bear the consequences of their
own fault or negligence, and that the proximate and immediate cause of the mishap in
question was respondent Arnaiz’s reckless imprudence or gross negligence.
The Court notes that the issues raised in the petition are factual in nature. Under Rule 45
of the Rules of Court, only questions of law may be raised in this Court, and while there
are exceptions to the rule, no such exception is present in this case. On this ground
alone, the petition is destined to fail. The Court, however, has reviewed the records of
the case, and finds that the petition is bereft of merit.
The petitioner is the grantee of a franchise, giving it the right, privilege and authority to
construct, operate and maintain toll facilities covering the expressways, collectively
known as the NLEX. Concomitant thereto is its right to collect toll fees for the use of the
30 
said expressways and its obligation to keep it safe for motorists.
There are three elements of a quasi-delict: (a) damages suffered by the plaintiff; (b) fault
or negligence of the defendant, or some other person for whose acts he must respond;
and (c) the connection of cause and effect between the fault or negligence of the
defendant and the damages incurred by the plaintiff. Article 2176 of the New Civil Code
31 
provides:
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.
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 do. It also refers to the
32 
conduct which creates undue risk of harm to another, the failure to observe that degree
of care, precaution and vigilance that the circumstance justly demand, whereby that
other person suffers injury. The Court declared the test by which to determine the
33 
existence of negligence in Picart v. Smith, viz:
34 
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
reasonable care and caution which an ordinarily prudent 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 test for determining whether a person is negligent in doing an act whereby injury or
damage results to the person or property of another is this: could a prudent man, in the
position of the person to whom negligence is attributed, foresee harm to the person
injured as a reasonable consequence of the course actually pursued? If so, the law
imposes a duty on the actor to refrain from that course or to take precautions to guard
against its mischievous results, and the failure to do so constitutes negligence.
Reasonable foresight of harm, followed by the ignoring of the admonition born of this
provision, is always necessary before negligence can be held to exist. 35
In the case at bar, it is clear that the petitioner failed to exercise the requisite diligence in
maintaining the NLEX safe for motorists. The lighted cans and lane dividers on the
highway were removed even as flattened sugarcanes lay scattered on the ground. The 36 
highway was still wet from the juice and sap of the flattened sugarcanes. The petitioner
37 
should have foreseen that the wet condition of the highway would endanger motorists
passing by at night or in the wee hours of the morning.
The petitioner cannot escape liability under the MOA between PASUDECO and TRB,
since respondent Latagan was not a party thereto. We agree with the following ruling of
the CA:
Both defendants, appellant PASUDECO and appellee PNCC, should be held liable.
PNCC, in charge of the maintenance of the expressway, has been negligent in the
performance of its duties. The obligation of PNCC should not be relegated to, by virtue of
a private agreement, to other parties.
PNCC declared the area free from obstruction since there were no piles of sugarcane,
but evidence shows there were still pieces of sugarcane stalks left flattened by motorists.
There must be an observance of that degree of care, precaution, and vigilance which the
situation demands. There should have been sufficient warning devices considering that
there were scattered sugarcane stalks still left along the tollway.
The records show, and as admitted by the parties, that Arnaiz’s car ran over scattered
sugarcanes spilled from a hauler truck. 38
Moreover, the MOA refers to accidents or damages to the toll facilities. It does not cover
damages to property or injuries caused to motorists on the NLEX who are not privies to
the MOA.
PASUDECO’s negligence in transporting sugarcanes without proper harness/straps, and
that of PNCC in removing the emergency warning devices, were two successive
negligent acts which were the direct and proximate cause of Latagan’s injuries. As such,
PASUDECO and PNCC are jointly and severally liable. As the Court held in the vintage
case of Sabido v. Custodio: 39
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. ...
In Far Eastern Shipping Company v. Court of Appeals, the Court declared that the
40 
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.
Thus, with PASUDECO’s and the petitioner’s successive negligent acts, they are joint
tortfeasors who are solidarily liable for the resulting damage under Article 2194 of the
New Civil Code. 41

Anent respondent Arnaiz’s negligence in driving his car, both the trial court and the CA
agreed that it was only contributory, and considered the same in mitigating the award of
damages in his favor as provided under Article 2179 of the New Civil Code. Contributory
42 

negligence is conduct on the part of the injured party, contributing as a legal cause to the
harm he has suffered, which falls below the standard to which he is required to conform
for his own protection. Even the petitioner itself described Arnaiz’s negligence as
43 

contributory. In its Answer to the complaint filed with the trial court, the petitioner
asserted that "the direct and proximate cause of the accident was the gross negligence
of PASUDECO personnel which resulted in the spillage of sugarcane and the apparent
failure of the PASUDECO workers to clear and mop up the area completely, coupled with
the contributory negligence of Arnaiz in driving his car at an unreasonable
speed." However, the petitioner changed its theory in the present recourse, and now
44 

claims that the proximate and immediate cause of the mishap in question was the
reckless imprudence or gross negligence of respondent Arnaiz. Such a change of theory
45 

cannot be allowed. When a party adopts a certain theory in the trial court, he will not be
permitted to change his theory on appeal, for to permit him to do so would not only be
unfair to the other party but it would also be offensive to the basic rules of fair play,
justice and due process. 46

IN LIGHT OF ALL THE FOREGOING, the present petition is hereby DENIED for lack of
merit. The Decision of the Court of Appeals in CA-G.R. CV No. 47699, dated April 29,
2003, is AFFIRMED. Costs against the petitioner.

SO ORDERE
G.R. No. 179446               January 10, 2011
LOADMASTERS CUSTOMS SERVICES, INC., Petitioner,
vs.
GLODEL BROKERAGE CORPORATION and R&B INSURANCE
CORPORATION, Respondents.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court
assailing the August 24, 2007 Decision1 of the Court of Appeals (CA) in CA-G.R. CV No.
82822, entitled "R&B Insurance Corporation v. Glodel Brokerage Corporation and
Loadmasters Customs Services, Inc.," which held petitioner Loadmasters Customs
Services, Inc. (Loadmasters) liable to respondent Glodel Brokerage
Corporation (Glodel) in the amount of ₱1,896,789.62 representing the insurance
indemnity which R&B Insurance Corporation (R&B Insurance) paid to the insured-
consignee, Columbia Wire and Cable Corporation (Columbia).
THE FACTS:
On August 28, 2001, R&B Insurance issued Marine Policy No. MN-00105/2001 in favor
of Columbia to insure the shipment of 132 bundles of electric copper cathodes against All
Risks. On August 28, 2001, the cargoes were shipped on board the vessel "Richard Rey"
from Isabela, Leyte, to Pier 10, North Harbor, Manila. They arrived on the same date.
Columbia engaged the services of Glodel for the release and withdrawal of the cargoes
from the pier and the subsequent delivery to its warehouses/plants. Glodel, in turn,
engaged the services of Loadmasters for the use of its delivery trucks to transport the
cargoes to Columbia’s warehouses/plants in Bulacan and Valenzuela City.
The goods were loaded on board twelve (12) trucks owned by Loadmasters, driven by its
employed drivers and accompanied by its employed truck helpers. Six (6) truckloads of
copper cathodes were to be delivered to Balagtas, Bulacan, while the other six (6)
truckloads were destined for Lawang Bato, Valenzuela City. The cargoes in six
truckloads for Lawang Bato were duly delivered in Columbia’s warehouses there. Of the
six (6) trucks en route to Balagtas, Bulacan, however, only five (5) reached the
destination. One (1) truck, loaded with 11 bundles or 232 pieces of copper cathodes,
failed to deliver its cargo.
Later on, the said truck, an Isuzu with Plate No. NSD-117, was recovered but without the
copper cathodes. Because of this incident, Columbia filed with R&B Insurance a claim for
insurance indemnity in the amount of ₱1,903,335.39. After the requisite investigation and
adjustment, R&B Insurance paid Columbia the amount of ₱1,896,789.62 as insurance
indemnity.
R&B Insurance, thereafter, filed a complaint for damages against both Loadmasters and
Glodel before the Regional Trial Court, Branch 14, Manila (RTC), docketed as Civil Case
No. 02-103040. It sought reimbursement of the amount it had paid to Columbia for the
loss of the subject cargo. It claimed that it had been subrogated "to the right of the
consignee to recover from the party/parties who may be held legally liable for the loss."2
On November 19, 2003, the RTC rendered a decision3 holding Glodel liable for damages
for the loss of the subject cargo and dismissing Loadmasters’ counterclaim for damages
and attorney’s fees against R&B Insurance. The dispositive portion of the decision reads:
WHEREFORE, all premises considered, the plaintiff having established by
preponderance of evidence its claims against defendant Glodel Brokerage Corporation,
judgment is hereby rendered ordering the latter:
1. To pay plaintiff R&B Insurance Corporation the sum of ₱1,896,789.62 as
actual and compensatory damages, with interest from the date of complaint until
fully paid;
2. To pay plaintiff R&B Insurance Corporation the amount equivalent to 10% of
the principal amount recovered as and for attorney’s fees plus ₱1,500.00 per
appearance in Court;
3. To pay plaintiff R&B Insurance Corporation the sum of ₱22,427.18 as litigation
expenses.
WHEREAS, the defendant Loadmasters Customs Services, Inc.’s counterclaim for
damages and attorney’s fees against plaintiff are hereby dismissed.
With costs against defendant Glodel Brokerage Corporation.
SO ORDERED.4
Both R&B Insurance and Glodel appealed the RTC decision to the CA.
On August 24, 2007, the CA rendered the assailed decision which reads in part:
Considering that appellee is an agent of appellant Glodel, whatever liability the latter
owes to appellant R&B Insurance Corporation as insurance indemnity must likewise be
the amount it shall be paid by appellee Loadmasters.
WHEREFORE, the foregoing considered, the appeal is PARTLY GRANTED in that the
appellee Loadmasters is likewise held liable to appellant Glodel in the amount of
₱1,896,789.62 representing the insurance indemnity appellant Glodel has been held
liable to appellant R&B Insurance Corporation.
Appellant Glodel’s appeal to absolve it from any liability is herein DISMISSED.
SO ORDERED.5
Hence, Loadmasters filed the present petition for review on certiorari before this Court
presenting the following
ISSUES
1. Can Petitioner Loadmasters be held liable to Respondent Glodel in spite
of the fact that the latter respondent Glodel did not file a cross-claim
against it (Loadmasters)?
2. Under the set of facts established and undisputed in the case, can
petitioner Loadmasters be legally considered as an Agent of respondent
Glodel?6
To totally exculpate itself from responsibility for the lost goods, Loadmasters argues that
it cannot be considered an agent of Glodel because it never represented the latter in its
dealings with the consignee. At any rate, it further contends that Glodel has no recourse
against it for its (Glodel’s) failure to file a cross-claim pursuant to Section 2, Rule 9 of the
1997 Rules of Civil Procedure.
Glodel, in its Comment,7 counters that Loadmasters is liable to it under its cross-claim
because the latter was grossly negligent in the transportation of the subject cargo. With
respect to Loadmasters’ claim that it is already estopped from filing a cross-claim, Glodel
insists that it can still do so even for the first time on appeal because there is no rule that
provides otherwise. Finally, Glodel argues that its relationship with Loadmasters is that of
Charter wherein the transporter (Loadmasters) is only hired for the specific job of
delivering the merchandise. Thus, the diligence required in this case is merely ordinary
diligence or that of a good father of the family, not the extraordinary diligence required of
common carriers.
R&B Insurance, for its part, claims that Glodel is deemed to have interposed a cross-
claim against Loadmasters because it was not prevented from presenting evidence to
prove its position even without amending its Answer. As to the relationship between
Loadmasters and Glodel, it contends that a contract of agency existed between the two
corporations.8
Subrogation is the substitution of one person in the place of another with reference to a
lawful claim or right, so that he who is substituted succeeds to the rights of the other in
relation to a debt or claim, including its remedies or securities.9 Doubtless, R&B
Insurance is subrogated to the rights of the insured to the extent of the amount it paid the
consignee under the marine insurance, as provided under Article 2207 of the Civil Code,
which reads:
ART. 2207. If the plaintiff’s property has been insured, and he has received indemnity
from the insurance company for the injury or loss arising out of the wrong or breach of
contract complained of, the insurance company shall be subrogated to the rights of the
insured against the wrong-doer or the person who has violated the contract. If the
amount paid by the insurance company does not fully cover the injury or loss, the
aggrieved party shall be entitled to recover the deficiency from the person causing the
loss or injury.
As subrogee of the rights and interest of the consignee, R&B Insurance has the right to
seek reimbursement from either Loadmasters or Glodel or both for breach of contract
and/or tort.
The issue now is who, between Glodel and Loadmasters, is liable to pay R&B Insurance
for the amount of the indemnity it paid Columbia.
At the outset, it is well to resolve the issue of whether Loadmasters and Glodel are
common carriers to determine their liability for the loss of the subject cargo. Under Article
1732 of the Civil Code, common carriers are persons, corporations, firms, or associations
engaged in the business of carrying or transporting passenger or goods, or both by land,
water or air for compensation, offering their services to the public.
Based on the aforecited definition, Loadmasters is a common carrier because it is
engaged in the business of transporting goods by land, through its trucking service. It is a
common carrier as distinguished from a private carrier wherein the carriage is generally
undertaken by special agreement and it does not hold itself out to carry goods for the
general public.10 The distinction is significant in the sense that "the rights and obligations
of the parties to a contract of private carriage are governed principally by their
stipulations, not by the law on common carriers."11
In the present case, there is no indication that the undertaking in the contract between
Loadmasters and Glodel was private in character. There is no showing that Loadmasters
solely and exclusively rendered services to Glodel.
In fact, Loadmasters admitted that it is a common carrier.12
In the same vein, Glodel is also considered a common carrier within the context of Article
1732. In its Memorandum,13 it states that it "is a corporation duly organized and existing
under the laws of the Republic of the Philippines and is engaged in the business of
customs brokering." It cannot be considered otherwise because as held by this Court
in Schmitz Transport & Brokerage Corporation v. Transport Venture, Inc., 14 a customs
broker is also regarded as a common carrier, the transportation of goods being an
integral part of its business.
Loadmasters and Glodel, being both common carriers, are mandated from the nature of
their business and for reasons of public policy, to observe the extraordinary diligence in
the vigilance over the goods transported by them according to all the circumstances of
such case, as required by Article 1733 of the Civil Code. When the Court speaks of
extraordinary diligence, it is that extreme measure of care and caution which persons of
unusual prudence and circumspection observe for securing and preserving their own
property or rights.15 This exacting standard imposed on common carriers in a contract of
carriage of goods is intended to tilt the scales in favor of the shipper who is at the mercy
of the common carrier once the goods have been lodged for shipment.16 Thus, in case of
loss of the goods, the common carrier is presumed to have been at fault or to have acted
negligently.17 This presumption of fault or negligence, however, may be rebutted by proof
that the common carrier has observed extraordinary diligence over the goods.
With respect to the time frame of this extraordinary responsibility, the Civil Code provides
that the exercise of extraordinary diligence lasts from the time the goods are
unconditionally placed in the possession of, and received by, the carrier for
transportation until the same are delivered, actually or constructively, by the carrier to the
consignee, or to the person who has a right to receive them.18
Premises considered, the Court is of the view that both Loadmasters and Glodel are
jointly and severally liable to R & B Insurance for the loss of the subject cargo. Under
Article 2194 of the New Civil Code, "the responsibility of two or more persons who are
liable for a quasi-delict is solidary."
Loadmasters’ claim that it was never privy to the contract entered into by Glodel with the
consignee Columbia or R&B Insurance as subrogee, is not a valid defense. It may not
have a direct contractual relation with Columbia, but it is liable for tort under the
provisions of Article 2176 of the Civil Code on quasi-delicts which expressly provide:
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.
Pertinent is the ruling enunciated in the case of Mindanao Terminal and Brokerage
Service, Inc. v. Phoenix Assurance Company of New York,/McGee & Co., Inc. 19 where
this Court held that a tort may arise despite the absence of a contractual relationship, to
wit:
We agree with the Court of Appeals that the complaint filed by Phoenix and McGee
against Mindanao Terminal, from which the present case has arisen, states a cause of
action. The present action is based on quasi-delict, arising from the negligent and
careless loading and stowing of the cargoes belonging to Del Monte Produce. Even
assuming that both Phoenix and McGee have only been subrogated in the rights of Del
Monte Produce, who is not a party to the contract of service between Mindanao Terminal
and Del Monte, still the insurance carriers may have a cause of action in light of the
Court’s consistent ruling that the act that breaks the contract may be also a tort. In fine,
a liability for tort may arise even under a contract, where tort is that which breaches the
contract. In the present case, Phoenix and McGee are not suing for damages for
injuries arising from the breach of the contract of service but from the alleged
negligent manner by which Mindanao Terminal handled the cargoes belonging to Del
Monte Produce. Despite the absence of contractual relationship between Del Monte
Produce and Mindanao Terminal, the allegation of negligence on the part of the
defendant should be sufficient to establish a cause of action arising from quasi-delict.
[Emphases supplied]
In connection therewith, Article 2180 provides:
ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own
acts or omissions, but also for those of persons for whom one is responsible.
xxxx
Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are not
engaged in any business or industry.
It is not disputed that the subject cargo was lost while in the custody of Loadmasters
whose employees (truck driver and helper) were instrumental in the hijacking or robbery
of the shipment. As employer, Loadmasters should be made answerable for the
damages caused by its employees who acted within the scope of their assigned task of
delivering the goods safely to the warehouse.
Whenever an employee’s negligence causes damage or injury to another, there instantly
arises a presumption juris tantum that the employer failed to exercise diligentissimi patris
families in the selection (culpa in eligiendo) or supervision (culpa in vigilando) of its
employees.20 To avoid liability for a quasi-delict committed by its employee, an employer
must overcome the presumption by presenting convincing proof that he exercised the
care and diligence of a good father of a family in the selection and supervision of his
employee.21 In this regard, Loadmasters failed.
Glodel is also liable because of its failure to exercise extraordinary diligence. It failed to
ensure that Loadmasters would fully comply with the undertaking to safely transport the
subject cargo to the designated destination. It should have been more prudent in
entrusting the goods to Loadmasters by taking precautionary measures, such as
providing escorts to accompany the trucks in delivering the cargoes. Glodel should,
therefore, be held liable with Loadmasters. Its defense of force majeure is unavailing.
At this juncture, the Court clarifies that there exists no principal-agent relationship
between Glodel and Loadmasters, as erroneously found by the CA. Article 1868 of the
Civil Code provides: "By the contract of agency a person binds himself to render some
service or to do something in representation or on behalf of another, with the consent or
authority of the latter." The elements of a contract of agency are: (1) consent, express or
implied, of the parties to establish the relationship; (2) the object is the execution of a
juridical act in relation to a third person; (3) the agent acts as a representative and not for
himself; (4) the agent acts within the scope of his authority.22
Accordingly, there can be no contract of agency between the parties. Loadmasters never
represented Glodel. Neither was it ever authorized to make such representation. It is a
settled rule that the basis for agency is representation, that is, the agent acts for and on
behalf of the principal on matters within the scope of his authority and said acts have the
same legal effect as if they were personally executed by the principal. On the part of the
principal, there must be an actual intention to appoint or an intention naturally inferable
from his words or actions, while on the part of the agent, there must be an intention to
accept the appointment and act on it.23 Such mutual intent is not obtaining in this case.
What then is the extent of the respective liabilities of Loadmasters and Glodel? Each
wrongdoer is liable for the total damage suffered by R&B Insurance. Where there are
several causes for the resulting damages, a party is not relieved from liability, even
partially. It is sufficient that the negligence of a party is an efficient cause without which
the damage would not have resulted. It is no defense to one of the concurrent tortfeasors
that the damage would not have resulted from his negligence alone, without the
negligence or wrongful acts of the other concurrent tortfeasor. As stated in the case
of Far Eastern Shipping v. Court of Appeals,24
X x x. 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
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. [Emphasis supplied]
The Court now resolves the issue of whether Glodel can collect from Loadmasters, it
having failed to file a cross-claim against the latter.1avvphi1
Undoubtedly, Glodel has a definite cause of action against Loadmasters for breach of
contract of service as the latter is primarily liable for the loss of the subject cargo. In this
case, however, it cannot succeed in seeking judicial sanction against Loadmasters
because the records disclose that it did not properly interpose a cross-claim against the
latter. Glodel did not even pray that Loadmasters be liable for any and all claims that it
may be adjudged liable in favor of R&B Insurance. Under the Rules, a compulsory
counterclaim, or a cross-claim, not set up shall be barred.25 Thus, a cross-claim cannot
be set up for the first time on appeal.
For the consequence, Glodel has no one to blame but itself. The Court cannot come to
its aid on equitable grounds. "Equity, which has been aptly described as ‘a justice outside
legality,’ is applied only in the absence of, and never against, statutory law or judicial
rules of procedure."26 The Court cannot be a lawyer and take the cudgels for a party who
has been at fault or negligent.
WHEREFORE, the petition is PARTIALLY GRANTED. The August 24, 2007 Decision of
the Court of Appeals is MODIFIED to read as follows:
WHEREFORE, judgment is rendered declaring petitioner Loadmasters Customs
Services, Inc. and respondent Glodel Brokerage Corporation jointly and severally liable
to respondent R&B Insurance Corporation for the insurance indemnity it paid to
consignee Columbia Wire & Cable Corporation and ordering both parties to pay, jointly
and severally, R&B Insurance Corporation a] the amount of ₱1,896,789.62 representing
the insurance indemnity; b] the amount equivalent to ten (10%) percent thereof for
attorney’s fees; and c] the amount of ₱22,427.18 for litigation expenses.

The cross-claim belatedly prayed for by respondent Glodel Brokerage Corporation

against petitioner Loadmasters Customs Services, Inc. is DENIED.

SO ORDERED
 G.R. No. 204866, January 21, 2015
RUKS KONSULT AND CONSTRUCTION, Petitioner, v. ADWORLD SIGN
AND ADVERTISING CORPORATION* AND TRANSWORLD MEDIA ADS,
INC., Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Decision2 dated
November 16, 2011 and the Resolution3 dated December 10, 2012 of the
Court of Appeals (CA) in CA-G.R. CV No. 94693 which affirmed the
Decision4 dated August 25, 2009 of the Regional Trial Court of Makati City,
Branch 142 (RTC) in Civil Case No. 03-1452 holding, inter alia, petitioner
Ruks Konsult and Construction (Ruks) and respondent Transworld Media Ads,
Inc. (Transworld) jointly and severally liable to respondent Adworld Sign and
Advertising Corporation (Adworld) for damages.
cralawred
The Facts
The instant case arose from a complaint for damages filed by Adworld against
Transworld and Comark International Corporation (Comark) before the
RTC.5 In the complaint, Adworld alleged that it is the owner of a 75 ft. x 60 ft.
billboard structure located at EDSA Tulay, Guadalupe, Barangka
Mandaluyong, which was misaligned and its foundation impaired when, on
August 11, 2003, the adjacent billboard structure owned by Transworld and
used by Comark collapsed and crashed against it. Resultantly, on August 19,
2003, Adworld sent Transworld and Comark a letter demanding payment for
the repairs of its billboard as well as loss of rental income. On August 29,
2003, Transworld sent its reply, admitting the damage caused by its billboard
structure on Adworld’s billboard, but nevertheless, refused and failed to pay
the amounts demanded by Adworld. As Adworld’s final demand letter also
went unheeded, it was constrained to file the instant complaint, praying for
damages in the aggregate amount of P474,204.00, comprised of P281,204.00
for materials, P72,000.00 for labor, and P121,000.00 for indemnity for loss of
income.6
chanRoblesvirtualLawlibrary
In its Answer with Counterclaim, Transworld averred that the collapse of its
billboard structure was due to extraordinarily strong winds that occurred
instantly and unexpectedly, and maintained that the damage caused to
Adworld’s billboard structure was hardly noticeable. Transworld likewise filed
a Third-Party Complaint against Ruks, the company which built the collapsed
billboard structure in the former’s favor. It was alleged therein that the
structure constructed by Ruks had a weak and poor foundation not suited for
billboards, thus, prone to collapse, and as such, Ruks should ultimately be
held liable for the damages caused to Adworld’s billboard structure.7 chanRoblesvirtualLawlibrary
For its part, Comark denied liability for the damages caused to Adworld’s
billboard structure, maintaining that it does not have any interest on
Transworld’s collapsed billboard structure as it only contracted the use of the
same. In this relation, Comark prayed for exemplary damages from
Transworld for unreasonably including it as a party-defendant in the
complaint.8chanRoblesvirtualLawlibrary
Lastly, Ruks admitted that it entered into a contract with Transworld for the
construction of the latter’s billboard structure, but denied liability for the
damages caused by its collapse. It contended that when Transworld hired its
services, there was already an existing foundation for the billboard and that it
merely finished the structure according to the terms and conditions of its
contract with the latter.9 chanRoblesvirtualLawlibrary
The RTC Ruling
In a Decision10 dated August 25, 2009, the RTC ultimately ruled in Adworld’s
favor, and accordingly, declared, inter alia, Transworld and Ruks jointly and
severally liable to Adworld in the amount of P474,204.00 as actual damages,
with legal interest from the date of the filing of the complaint until full
payment thereof, plus attorney’s fees in the amount of P50,000.00.11 chanRoblesvirtualLawlibrary
The RTC found both Transworld and Ruks negligent in the construction of the
collapsed billboard as they knew that the foundation supporting the same was
weak and would pose danger to the safety of the motorists and the other
adjacent properties, such as Adworld’s billboard, and yet, they did not do
anything to remedy the situation.12 In particular, the RTC explained that
Transworld was made aware by Ruks that the initial construction of the lower
structure of its billboard did not have the proper foundation and would
require additional columns and pedestals to support the structure.
Notwithstanding, however, Ruks proceeded with the construction of the
billboard’s upper structure and merely assumed that Transworld would
reinforce its lower structure.13 The RTC then concluded that these negligent
acts were the direct and proximate cause of the damages suffered by
Adworld’s billboard.14
chanRoblesvirtualLawlibrary
Aggrieved, both Transworld and Ruks appealed to the CA. In a Resolution
dated February 3, 2011, the CA dismissed Transworld’s appeal for its failure
to file an appellant’s brief on time.15 Transworld elevated its case before the
Court, docketed as G.R. No. 197601.16 However, in a Resolution17 dated
November 23, 2011, the Court declared the case closed and terminated for
failure of Transworld to file the intended petition for review
on certiorari within the extended reglementary period. Subsequently, the
Court issued an Entry of Judgment18 dated February 22, 2012 in G.R. No.
197601 declaring the Court’s November 23, 2011 Resolution  final and
executory.
The CA Ruling
In a Decision19 dated November 16, 2011, the CA denied Ruks’s appeal and
affirmed the ruling of the RTC. It adhered to the RTC’s finding of negligence
on the part of Transworld and Ruks which brought about the damage to
Adworld’s billboard. It found that Transworld failed to ensure that Ruks will
comply with the approved plans and specifications of the structure, and that
Ruks continued to install and finish the billboard structure despite the
knowledge that there were no adequate columns to support the same.20
Dissatisfied, Ruks moved for reconsideration,21 which was, however, denied in
a Resolution22 dated December 10, 2012, hence, this petition.
On the other hand, Transworld filed another appeal before the Court,
docketed as G.R. No. 205120.23 However, the Court denied outright
Transworld’s petition in a Resolution24 dated April 15, 2013, holding that the
same was already bound by the dismissal of its petition filed in G.R. No.
197601.
The Issue Before the Court
The primordial issue for the Court’s resolution is whether or not the CA
correctly affirmed the ruling of the RTC declaring Ruks jointly and severally
liable with Transworld for damages sustained by Adworld.
The Court’s Ruling
The petition is without merit.
At the outset, it must be stressed that factual findings of the RTC, when
affirmed by the CA, are entitled to great weight by the Court and are deemed
final and conclusive when supported by the evidence on record.25 Absent any
exceptions to this rule – such as when it is established that the trial court
ignored, overlooked, misconstrued, or misinterpreted cogent facts and
circumstances that, if considered, would change the outcome of the case26 –
such findings must stand.
After a judicious perusal of the records, the Court sees no cogent reason to
deviate from the findings of the RTC and the CA and their uniform conclusion
that both Transworld and Ruks committed acts resulting in the collapse of the
former’s billboard, which in turn, caused damage to the adjacent billboard of
Adworld.
Jurisprudence defines negligence as 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.27 It 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.28chanRoblesvirtualLawlibrary
chanRoblesvirtualLawlibrary
In this case, the CA correctly affirmed the RTC’s finding that Transworld’s
initial construction of its billboard’s lower structure without the proper
foundation, and that of Ruks’s finishing its upper structure and just merely
assuming that Transworld would reinforce the weak foundation are the two
(2) successive acts which were the direct and proximate cause of the
damages sustained by Adworld. Worse, both Transworld and Ruks were fully
aware that the foundation for the former’s billboard was weak; yet, neither of
them took any positive step to reinforce the same. They merely relied on
each other’s word that repairs would be done to such foundation, but none
was done at all. Clearly, the foregoing circumstances show that both
Transworld and Ruks are guilty of negligence in the construction of the
former’s billboard, and perforce, should be held liable for its collapse and the
resulting damage to Adworld’s billboard structure. As joint tortfeasors,
therefore, they are solidarily liable to Adworld. Verily, “[j]oint tortfeasors are
those who command, instigate, promote, encourage, advise, countenance,
cooperate in, aid or abet the commission of a tort, or approve of it after it is
done, if done for their benefit. They are also referred to as those who act
together in committing wrong or whose acts, if independent of each other,
unite in causing a single injury. Under Article 219429 of the Civil Code, joint
tortfeasors are solidarily liable for the resulting damage. In other words, joint
tortfeasors are each liable as principals, to the same extent and in the same
manner as if they had performed the wrongful act themselves.”30 The Court’s
pronouncement in People v. Velasco31 is instructive on this matter, to wit:32 chanRoblesvirtualLawlibrary

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
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 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. x x x. (Emphases and
underscoring supplied)

In conclusion, the CA correctly affirmed the ruling of the RTC declaring Ruks
jointly and severally liable with Transworld for damages sustained by
Adworld. chanrobleslaw

WHEREFORE, the petition is DENIED. The Decision dated November 16,

2011 and the Resolution dated December 10, 2012 of the Court of Appeals in
CA-G.R. CV No. 94693 are hereby AFFIRMED.

SO ORDERED
G.R. No. 186412               September 7, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ORLITO VILLACORTA, Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
On appeal is the Decision1 dated July 30, 2008 of the Court of Appeals in CA-G.R. CR.-
H.C. No. 02550, which affirmed the Decision2 dated September 22, 2006 of the Regional
Trial Court (RTC), Branch 170, of Malabon, in Criminal Case No. 27039-MN, finding
accused-appellant Orlito Villacorta (Villacorta) guilty of murder, and sentencing him to
suffer the penalty of reclusion perpetua and to pay the heirs of Danilo Cruz (Cruz) the
sum of ₱50,000.00 as civil indemnity, plus the costs of suit.
On June 21, 2002, an Information3 was filed against Villacorta charging him with the
crime of murder, as follows:
That on or about 23rd day of January 2002, in Navotas, Metro Manila, and within the
jurisdiction of this Honorable Court, the above-named accused, armed with a sharpened
bamboo stick, with intent to kill, treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault and stab with the said weapon one
DANILO SALVADOR CRUZ, thereby inflicting upon the victim serious wounds which
caused his immediate death.
When arraigned on September 9, 2002, Villacorta pleaded not guilty.4
During trial, the prosecution presented as witnesses Cristina Mendeja (Mendeja) and Dr.
Domingo Belandres, Jr. (Dr. Belandres).
Mendeja narrated that on January 23, 2002, she was tending her sari-sari store located
at C-4 Road, Bagumbayan, Navotas. Both Cruz and Villacorta were regular customers at
Mendeja’s store. At around two o’clock in the morning, while Cruz was ordering bread at
Mendeja’s store, Villacorta suddenly appeared and, without uttering a word, stabbed
Cruz on the left side of Cruz’s body using a sharpened bamboo stick. The bamboo stick
broke and was left in Cruz’s body. Immediately after the stabbing incident, Villacorta fled.
Mendeja gave chase but failed to catch Villacorta. When Mendeja returned to her store,
she saw her neighbor Aron removing the broken bamboo stick from Cruz’s
body.5 Mendeja and Aron then brought Cruz to Tondo Medical Center.6
Dr. Belandres was Head of the Tetanus Department at the San Lazaro Hospital. When
Cruz sustained the stab wound on January 23, 2002, he was taken to the Tondo Medical
Center, where he was treated as an out-patient. Cruz was only brought to the San
Lazaro Hospital on February 14, 2002, where he died the following day, on February 15,
2002. While admitting that he did not personally treat Cruz, Dr. Belandres was able to
determine, using Cruz’s medical chart and diagnosis, that Cruz died of tetanus infection
secondary to stab wound.7 Dr. Belandres specifically described the cause of Cruz’s death
in the following manner:
The wound was exposed x x – spurs concerted, the patient developed difficulty of
opening the mouth, spastivity of the body and abdominal pain and the cause of death is
hypoxic encephalopathy – neuro transmitted – due to upper G.I. bleeding x x x.
Diagnosed of Tetanus, Stage III.8
The prosecution also intended to present Dr. Deverni Matias (Dr. Matias), who attended
to Cruz at the San Lazaro Hospital, but the prosecution and defense agreed to dispense
with Dr. Matias’ testimony based on the stipulation that it would only corroborate Dr.
Belandres’ testimony on Cruz dying of tetanus.
For its part, the defense presented Villacorta himself, who denied stabbing Cruz.
Villacorta recounted that he was on his way home from work at around two o’clock in the
morning of January 21, 2002. Upon arriving home, Villacorta drank coffee then went
outside to buy cigarettes at a nearby store. When Villacorta was about to leave the store,
Cruz put his arm around Villacorta’s shoulder. This prompted Villacorta to box Cruz, after
which, Villacorta went home. Villacorta did not notice that Cruz got hurt. Villacorta only
found out about Cruz’s death upon his arrest on July 31, 2002.9
On September 22, 2006, the RTC rendered a Decision finding Villacorta guilty of murder,
qualified by treachery. The dispositive portion of said Decision reads:
WHEREFORE, in the light of the foregoing, the Court finds accused Orlito Villacorta
guilty beyond reasonable doubt of the crime of Murder and is hereby sentenced to suffer
the penalty of reclusion perpetua and to pay the heirs of Danilo Cruz the sum of
₱50,000.00 as civil indemnity for the death of said victim plus the costs of suit.10
Villacorta, through his counsel from the Public Attorney’s Office (PAO), filed a notice of
appeal to assail his conviction by the RTC.11 The Court of Appeals directed the PAO to
file Villacorta’s brief, within thirty days from receipt of notice.
Villacorta filed his Appellant’s Brief12 on May 30, 2007; while the People, through the
Office of the Solicitor General (OSG), filed its Appellee's Brief13 on October 2, 2007.
On July 30, 2008, the Court of Appeals promulgated its Decision affirming in toto the
RTC judgment of conviction against Villacorta.
Hence, Villacorta comes before this Court via the instant appeal.
Villacorta manifested that he would no longer file a supplemental brief, as he was
adopting the Appellant's Brief he filed before the Court of Appeals.14 The OSG, likewise,
manifested that it was no longer filing a supplemental brief. 15
In his Appellant’s Brief, Villacorta raised the following assignment of errors:
I testimony of prosecution witness Mendeja. The Court of Appeals rejected Villacorta’s
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY OF THE CRIME CHARGED DESPITE THE FAILURE OF
THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING
CIRCUMSTANCE OF TREACHERY.
III
ASSUMING ARGUENDO THAT THE ACCUSED COMMITTED A CRIME, HE
COULD ONLY BE HELD LIABLE FOR SLIGHT PHYSICAL INJURIES.16
Villacorta assails the credibility of Mendeja, an eyewitness to the stabbing incident. It was
Mendeja who positively identified Villacorta as the one who stabbed Cruz in the early
morning of January 23, 2002. Villacorta asserts that Mendeja’s account of the stabbing
incident is replete with inconsistencies and incredulities, and is contrary to normal human
experience, such as: (1) instead of shouting or calling for help when Villacorta allegedly
stabbed Cruz, Mendeja attempted to run after and catch Villacorta; (2) while, by
Mendeja’s own account, there were other people who witnessed the stabbing and could
have chased after Villacorta, yet, oddly, only Mendeja did; (3) if Cruz was stabbed so
swiftly and suddenly as Mendeja described, then it would have been physically
improbable for Mendeja to have vividly recognized the perpetrator, who immediately ran
away after the stabbing; (4) after the stabbing, both Villacorta and Cruz ran in opposite
directions; and (5) Mendeja had said that the bamboo stick, the alleged murder weapon,
was left at her store, although she had also stated that the said bamboo stick was left
embedded in Cruz’s body. Villacorta maintains that the aforementioned inconsistencies
are neither trivial nor inconsequential, and should engender some doubt as to his guilt.
We are not persuaded.
To begin with, it is fundamental that the determination by the trial court of the credibility
of witnesses, when affirmed by the appellate court, is accorded full weight and credit as
well as great respect, if not conclusive effect. Such determination made by the trial court
proceeds from its first-hand opportunity to observe the demeanor of the witnesses, their
conduct and attitude under grilling examination, thereby placing the trial court in the
unique position to assess the witnesses' credibility and to appreciate their truthfulness,
honesty and candor.17
In this case, both the RTC and the Court of Appeals gave full faith and credence to the
attempts to impugn Mendeja’s testimony, thus:
Appellant’s reason for concluding that witness Mendeja’s testimony is incredible because
she did not shout or call for help and instead run after the appellant, fails to impress the
Court because persons who witness crimes react in different ways.
"x x x the makings of a human mind are unpredictable; people react differently and there
is no standard form of behavior when one is confronted by a shocking incident.
Equally lacking in merit is appellant’s second reason which is, other persons could have
run after the appellant after the stabbing incident. As explained by witness Mendeja, the
other person whom she identified as Aron was left to assist the appellant who was
wounded. Further, the stabbing occurred at 2:00 o’clock in the morning, a time when
persons are expected to be asleep in their house, not roaming the streets.
His [Villacorta’s] other argument that the swiftness of the stabbing incident rendered
impossible or incredible the identification of the assailant cannot likewise prosper in view
of his admission that he was in the store of witness Mendeja on January 23, 2002 at 2:00
o’clock in the morning and that he assaulted the victim by boxing him.
Even if his admission is disregarded still the evidence of record cannot support
appellant’s argument. Appellant and the victim were known to witness Mendeja, both
being her friends and regular customers. There was light in front of the store. An opening
in the store measuring 1 and ¼ meters enables the person inside to see persons outside,
particularly those buying articles from the store. The victim was in front of the store
buying bread when attacked. Further, immediately after the stabbing, witness Mendeja
ran after the appellant giving her additional opportunity to identify the malefactor. Thus,
authorship of the attack can be credibly ascertained.18
Moreover, Villacorta was unable to present any reason or motivation for Mendeja to
fabricate such a lie and falsely accuse Villacorta of stabbing Cruz on January 23, 2002.
We have ruled time and again that where the prosecution eyewitness was familiar with
both the victim and accused, and where the locus criminis afforded good visibility, and
where no improper motive can be attributed to the witness for testifying against the
accused, then her version of the story deserves much weight.19
The purported inconsistencies in Mendeja’s testimony pointed out by Villacorta are on
matters that have no bearing on the fundamental fact which Mendeja testified on: that
Villacorta stabbed Cruz in the early morning of January 23, 2002, right in front of
Mendeja’s store.
In the face of Mendeja’s positive identification of Villacorta as Cruz’s stabber, Villacorta
could only muster an uncorroborated denial. Denial, like alibi, as an exonerating
justification, is inherently weak and if uncorroborated, regresses to blatant impotence.
Like alibi, it also constitutes self-serving negative evidence which cannot be accorded
greater evidentiary weight than the declaration of credible witnesses who testify on
affirmative matters.20
Hence, we do not deviate from the foregoing factual findings of the RTC, as affirmed by
the Court of Appeals.
Nevertheless, there is merit in the argument proffered by Villacorta that in the event he is
found to have indeed stabbed Cruz, he should only be held liable for slight physical
injuries for the stab wound he inflicted upon Cruz. The proximate cause of Cruz’s death
is the tetanus infection, and not the stab wound.
Proximate cause has been 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."21
In this case, immediately after he was stabbed by Villacorta in the early morning of
January 23, 2002, Cruz was rushed to and treated as an out-patient at the Tondo
Medical Center. On February 14, 2002, Cruz was admitted to the San Lazaro Hospital for
symptoms of severe tetanus infection, where he died the following day, on February 15,
2002. The prosecution did not present evidence of the emergency medical treatment
Cruz received at the Tondo Medical Center, subsequent visits by Cruz to Tondo Medical
Center or any other hospital for follow-up medical treatment of his stab wound, or Cruz’s
activities between January 23 to February 14, 2002.
In Urbano v. Intermediate Appellate Court,22 the Court was confronted with a case of very
similar factual background as the one at bar. During an altercation on October 23, 1980,
Urbano hacked Javier with a bolo, inflicting an incised wound on Javier’s hand. Javier
was treated by Dr. Meneses. On November 14, 1980, Javier was rushed to the hospital
with lockjaw and convulsions. Dr. Exconde, who attended to Javier, found that Javier’s
serious condition was caused by tetanus infection. The next day, on November 15, 1980,
Javier died. An Information was filed against Urbano for homicide. Both the Circuit
Criminal Court and the Intermediate Appellate Court found Urbano guilty of homicide,
because Javier's death was the natural and logical consequence of Urbano's unlawful
act. Urbano appealed before this Court, arguing that Javier’s own negligence was the
proximate cause of his death. Urbano alleged that when Dr. Meneses examined Javier’s
wound, he did not find any tetanus infection and that Javier could have acquired the
tetanus germs when he returned to work on his farm only two (2) weeks after sustaining
his injury. The Court granted Urbano’s appeal.
We quote extensively from the ratiocination of the Court in Urbano:
The issue, therefore, hinges on whether or not there was an efficient intervening cause
from the time Javier was wounded until his death which would exculpate Urbano from
any liability for Javier's death.
We look into the nature of tetanus-
"The incubation period of tetanus, i.e., the time between injury and the appearance of
unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of patients
become symptomatic within 14 days. A short incubation period indicates severe disease,
and when symptoms occur within 2 or 3 days of injury the mortality rate approaches 100
percent.
"Non-specific premonitory symptoms such as restlessness, irritability, and headache are
encountered occasionally, but the commonest presenting complaints are pain and
stiffness in the jaw, abdomen, or back and difficulty swallowing. As the disease
progresses, stiffness gives way to rigidity, and patients often complain of difficulty
opening their mouths. In fact, trismus is the commonest manifestation of tetanus and is
responsible for the familiar descriptive name of lockjaw. As more muscles are involved,
rigidity becomes generalized, and sustained contractions called risus sardonicus. The
intensity and sequence of muscle involvement is quite variable. In a small proportion of
patients, only local signs and symptoms develop in the region of the injury. In the vast
majority, however, most muscles are involved to some degree, and the signs and
symptoms encountered depend upon the major muscle groups affected.
"Reflex spasm usually occur within 24 to 72 hours of the first symptoms, an interval
referred to as the onset time. As in the case of the incubation period, a short onset time
is associated with a poor prognosis. Spasms are caused by sudden intensification of
afferent stimuli arising in the periphery, which increases rigidity and causes simultaneous
and excessive contraction of muscles and their antagonists. Spasms may be both painful
and dangerous. As the disease progresses, minimal or inapparent stimuli produce more
intense and longer lasting spasms with increasing frequency. Respiration may be
impaired by laryngospasm or tonic contraction of respiratory muscles which prevent
adequate ventilation. Hypoxia may then lead to irreversible central nervous system
damage and death.
"Mild tetanus is characterized by an incubation period of at least 14 days and an onset
time of more than 6 days. Trismus is usually present, but dysphagia is absent and
generalized spasms are brief and mild. Moderately severe tetanus has a somewhat
shorter incubation period and onset time; trismus is marked, dysphagia and generalized
rigidity are present, but ventilation remains adequate even during spasms. The criteria
for severe tetanus include a short incubation time, and an onset time of 72 hrs., or less,
severe trismus, dysphagia and rigidity and frequent prolonged, generalized convulsive
spasms. (Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005;
Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found inside a man's body
depends on the incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he
parried the bolo which Urbano used in hacking him. This incident took place on October
23, 1980. After 22 days, or on November 14, 1980, he suffered the symptoms of tetanus,
like lockjaw and muscle spasms. The following day, November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was already infected by
tetanus germs at the time, it is more medically probable that Javier should have been
infected with only a mild case of tetanus because the symptoms of tetanus appeared on
the 22nd day after the hacking incident or more than 14 days after the infliction of the
wound. Therefore, the onset time should have been more than six days. Javier, however,
died on the second day from the onset time. The more credible conclusion is that at the
time Javier's wound was inflicted by the appellant, the severe form of tetanus that killed
him was not yet present. Consequently, Javier's wound could have been infected with
tetanus after the hacking incident. Considering the circumstance surrounding Javier's
death, his wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22
days before he died.23
The incubation period for tetanus infection and the length of time between the hacking
incident and the manifestation of severe tetanus infection created doubts in the mind of
the Court that Javier acquired the severe tetanus infection from the hacking incident. We
explained in Urbano that:
The rule is that the death of the victim must be the direct, natural, and logical
consequence of the wounds inflicted upon him by the accused. (People v. Cardenas,
supra) And since we are dealing with a criminal conviction, the proof that the accused
caused the victim's death must convince a rational mind beyond reasonable doubt. The
medical findings, however, lead us to a distinct possibility that the infection of the wound
by tetanus was an efficient intervening cause later or between the time Javier was
wounded to the time of his death. The infection was, therefore, distinct and foreign to the
crime. (People v. Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was but the remote cause and
its subsequent infection, for failure to take necessary precautions, with tetanus may have
been the proximate cause of Javier's death with which the petitioner had nothing to do.
As we ruled in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).
"A prior and remote cause cannot be made the basis of an action if such remote cause
did nothing more than furnish the condition or give rise to the occasion by which the
injury was made possible, if there intervened between such prior or remote cause and
the injury a distinct, successive, unrelated, and efficient cause of the injury, even though
such injury would not have happened but for such condition or occasion. If no danger
existed in the condition except because of the independent cause, such condition was
not the proximate cause. And if an independent negligent act or defective condition sets
into operation the instances, which result in injury because of the prior defective
condition, such subsequent act or condition is the proximate cause." (45 C.J. pp. 931-
932). (at p. 125)24
We face the very same doubts in the instant case that compel us to set aside the
conviction of Villacorta for murder. There had been an interval of 22 days between the
date of the stabbing and the date when Cruz was rushed to San Lazaro Hospital,
exhibiting symptoms of severe tetanus infection. If Cruz acquired severe tetanus
infection from the stabbing, then the symptoms would have appeared a lot sooner than
22 days later. As the Court noted in Urbano, severe tetanus infection has a short
incubation period, less than 14 days; and those that exhibit symptoms with two to three
days from the injury, have one hundred percent (100%) mortality. Ultimately, we can only
deduce that Cruz’s stab wound was merely the remote cause, and its subsequent
infection with tetanus might have been the proximate cause of Cruz's death. The
infection of Cruz’s stab wound by tetanus was an efficient intervening cause later or
between the time Cruz was stabbed to the time of his death.
However, Villacorta is not totally without criminal liability.  Villacorta is guilty of slight
1âwphi1
physical injuries under Article 266(1) of the Revised Penal Code for the stab wound he
inflicted upon Cruz. Although the charge in the instant case is for murder, a finding of
guilt for the lesser offense of slight physical injuries may be made considering that the
latter offense is necessarily included in the former since the essential ingredients of slight
physical injuries constitute and form part of those constituting the offense of murder.25
We cannot hold Villacorta criminally liable for attempted or frustrated murder because the
prosecution was not able to establish Villacorta’s intent to kill. In fact, the Court of
Appeals expressly observed the lack of evidence to prove such an intent beyond
reasonable doubt, to wit:
Appellant stabbed the victim only once using a sharpened bamboo stick, hitting him on
the left side of the body and then immediately fled. The instrument used is not as lethal
as those made of metallic material. The part of the body hit is not delicate in the sense
that instant death can ensue by reason of a single stab wound. The assault was done
only once. Thus, there is doubt as to whether appellant had an intent to kill the victim,
which should be resolved in favor of the appellant. x x x.26
The intent must be proved in a clear and evident manner to exclude every possible doubt
as to the homicidal (or murderous) intent of the aggressor. The onus probandi lies not on
accused-appellant but on the prosecution. The inference that the intent to kill existed
should not be drawn in the absence of circumstances sufficient to prove this fact beyond
reasonable doubt. When such intent is lacking but wounds were inflicted, the crime is not
frustrated murder but physical injuries only.27
Evidence on record shows that Cruz was brought to Tondo Medical Center for medical
treatment immediately after the stabbing incident.  Right after receiving medical
1avvphi1
treatment, Cruz was then released by the Tondo Medical Center as an out-patient. There
was no other evidence to establish that Cruz was incapacitated for labor and/or required
medical attendance for more than nine days. Without such evidence, the offense is only
slight physical injuries.28
We still appreciate treachery as an aggravating circumstance, it being sufficiently alleged
in the Information and proved during trial.
The Information specified that "accused, armed with a sharpened bamboo stick, with
intent to kill, treachery and evident premeditation, did then and there willfully, unlawfully
and feloniously attack, assault and stab with the said weapon one DANILO SALVADOR
CRUZ x x x."
Treachery exists when an offender commits any of the crimes against persons,
employing means, methods or forms which tend directly or especially to ensure its
execution, without risk to the offender, arising from the defense that the offended party
might make. This definition sets out what must be shown by evidence to conclude that
treachery existed, namely: (1) the employment of such means of execution as would give
the person attacked no opportunity for self-defense or retaliation; and (2) the deliberate
and conscious adoption of the means of execution. To reiterate, the essence of
qualifying circumstance is the suddenness, surprise and the lack of expectation that the
attack will take place, thus, depriving the victim of any real opportunity for self-defense
while ensuring the commission of the crime without risk to the aggressor.29 Likewise,
even when the victim was forewarned of the danger to his person, treachery may still be
appreciated since what is decisive is that the execution of the attack made it impossible
for the victim to defend himself or to retaliate.30
Both the RTC and the Court of Appeals found that treachery was duly proven in this
case, and we sustain such finding. Cruz, the victim, was attacked so suddenly,
unexpectedly, and without provocation. It was two o’clock in the morning of January 23,
2002, and Cruz, who was out buying bread at Mendeja’s store, was unarmed. Cruz had
his guard down and was totally unprepared for an attack on his person. Villacorta
suddenly appeared from nowhere, armed with a sharpened bamboo stick, and without
uttering a word, stabbed Cruz at the left side of his body, then swiftly ran away.
Villacorta’s treacherous mode of attack left Cruz with no opportunity at all to defend
himself or retaliate.
Article 266(1) of the Revised Penal Code provides:
ART. 266. Slight physical injuries and maltreatment. – The crime of slight physical
injuries shall be punished:
1. By arresto menor when the offender has inflicted physical injuries which shall
incapacitate the offended party from labor from one to nine days, or shall require medical
attendance during the same period.
The penalty of arresto menor spans from one (1) day to thirty (30) days.31 The
Indeterminate Sentence Law does not apply since said law excludes from its coverage
cases where the penalty imposed does not exceed one (1) year.32 With the aggravating
circumstance of treachery, we can sentence Villacorta with imprisonment anywhere
within arresto menor in the maximum period, i.e., twenty-one (21) to thirty (30) days.
Consequently, we impose upon Villacorta a straight sentence of thirty (30) days of
arresto menor; but given that Villacorta has been in jail since July 31, 2002 until present
time, already way beyond his imposed sentence, we order his immediate release.
Under paragraph (1), Article 2219 of the Civil Code, moral damages may be recovered in
a criminal offense resulting in physical injuries. Moral damages compensate for the
mental anguish, serious anxiety, and moral shock suffered by the victim and his family as
being a proximate result of the wrongful act. An award requires no proof of pecuniary
loss. Pursuant to previous jurisprudence, an award of Five Thousand Pesos (₱5,000.00)
moral damages is appropriate for less serious, as well as slight physical injuries.33
WHEREFORE, the Decision dated July 30, 2008 of the Court of Appeals in CA-G.R.
CR.-H.C. No. 02550, affirming the Decision dated September 22, 2006 of the Regional
Trial Court, Branch 170, of Malabon, in Criminal Case No. 27039-MN, is REVERSED
and SET ASIDE. A new judgment is entered finding Villacorta GUILTY beyond
reasonable doubt of the crime of slight physical injuries, as defined and punished by
Article 266 of the Revised Penal Code, and sentenced to suffer the penalty of thirty (30)
days arresto menor. Considering that Villacorta has been incarcerated well beyond the
period of the penalty herein imposed, the Director of the Bureau of Prisons is ordered to
cause Villacorta’s immediate release, unless Villacorta is being lawfully held for another
cause, and to inform this Court, within five (5) days from receipt of this Decision, of the
compliance with such order. Villacorta is ordered to pay the heirs of the late Danilo Cruz
moral damages in the sum of Five Thousand Pesos (₱5,000.00).

SO ORDERED
 [G.R. No. 117954. April 27, 2000.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ORLANDO
ACURAM, Accused-Appellant.
DECISION
On appeal is the decision rendered on August 24, 1994, by the Regional Trial
Court of Cagayan de Oro City, Branch 22, in Criminal Case No. 91-1161,
finding accused-appellant Orlando Acuram guilty of murder.
On September 30, 1991, Assistant Provincial Prosecutor Benber Apepe
charged appellant with the crime of murder, allegedly committed as
follows:jgc:chanrobles.com.ph
"On June 29, 1991, at about 7:00 o’clock in the evening, at Poblacion, El
Salvador, Misamis Oriental, which is within the jurisdiction of the Honorable
Court, the above-named accused, with intent to kill and treachery did, then
and there, wilfully, unlawfully and feloniously and with the use of his armalite
rifle, shoot at one Orlando 1 Manabat who was just standing on the highway
waiting for a ride towards home, thus, hitting and wounding the latter on the
right leg or thigh, which caused his death the following day.
CONTRARY TO and in violation of Article 248, paragraph 1, of the Revised
Penal Code. 2
Upon arraignment appellant, assisted by counsel, entered a plea of not guilty
to the charge. 3 Thereafter, trial on the merits ensued. Subsequently, the
trial court rendered judgment, disposing as follows: jgc:chanrobles.com.ph
"WHEREFORE, in the light of the foregoing facts convincingly proved by the
prosecution, the accused, ORLANDO ACURAM, is hereby found guilty beyond
reasonable doubt, of the crime of MURDER, qualified by treachery, and is
meted the penalty of reclusion perpetua and to indemnify the heirs of the
deceased ROLANDO MANABAT the jurisprudential sum of fifty thousand
(P50,000.00) pesos without subsidiary imprisonment in case of insolvency
and to pay the cost of the suit.
QUISUMBING, J.:
chanrobles.com : law library
SO ORDERED." 4
The records disclose that on June 29, 1991, at around seven o’clock in the
evening, Rolando Manabat, Oscar Manabat, Bartolome Nabe, and Peterson
Valendres, after the day’s work, proceeded to the market in El Salvador,
Misamis Oriental, to buy fish. Since no fish was available at that time, they
decided to head for home instead. They went to the national highway, stood
at the right side facing east towards the direction of Cagayan de Oro City and
waited for a ride there. They flagged down an approaching passenger jeepney
which, however, swerved dangerously towards them. At this juncture,
Rolando Manabat shouted at the jeep "Pesteng yawa-a kamo, Manligis man
kamo" (You devils, why did you try to run over us?). A passenger inside the
jeepney shouted back, "Noano man diay, isog mo?" (Why? Are you brave?).
Immediately thereafter, two gunshots rang out in the air, accompanied by
sparks coming from the front right side of the jeepney. Then Rolando
shouted, "Agay. I was shot." The vehicle did not stop but instead speeded
towards the direction of Cagayan de Oro City. Wounded on the right knee,
Rolando was brought by his companions to the Cagayan de Oro Medical
Center. Later on, they were informed that Rolando needed blood transfusion
and so they transferred him at around 11:25 P.M. to the Northern Mindanao
Regional Hospital in the same city.
Upon arrival at the hospital, Rolando was examined by Dr. Ismael Naypa, Jr.
The doctor found the victim’s blood pressure to be just forty over zero (40/0)
and the victim’s right leg was heavily bandaged. He decided to operate on the
victim when the latter’s blood pressure stabilized. At about 5:00 A.M. the
following day, the victim underwent surgery. Unfortunately, the victim died at
around 11:00 A.M. Dr. Naypa later testified that the cause of Rolando’s death
was "secondary to huddle respiratory syndrome secondary to blood loss,
secondary to gunshot wounds", or briefly, massive loss of blood due to
gunshot wound. He stated that under normal circumstances, the wound
would not necessarily cause death but in this case where the wound
transected the major part of the leg, the wound was fatal. He clarified that
the victim sustained only one gunshot wound which entered at the front
portion of the right knee and exited at the back of the right knee, causing two
wounds. 5
The El Salvador police conducted investigation on the incident. It was
discovered that appellant Orlando Acuram, a policeman assigned with the
421st PNP Company based at San Martin, Villanueva, Misamis Oriental, was
among the passengers of the errant jeepney. He was seated at the front,
right side of the jeepney and was the only one among its passengers who
was carrying a firearm. Pending investigation, he was restricted to the camp
effective July 1, 1991, upon orders of his commanding officer, Major Rodolfo
De La Piedra. 6 Appellant was later surrendered by his commanding officer to
the custody of the court on the basis of the warrant of arrest issued by MCTC
Judge Evelyn Nery. 7 On motion by the prosecution and without objection
from the defense, the trial court suspended appellant from the service and
ordered his detention at the provincial jail. 8
During the trial, appellant admitted that he was on board the mentioned
jeepney and had a gun at that time but denied firing it. He claimed that it
was impossible for him to fire his rifle during that time since he was sitting at
the front seat of the jeepney, sandwiched between the driver and the latter’s
father-in-law. Moreover, he said that the rifle was locked and wrapped by his
jacket and its barrel was even pointed towards the driver. 9
The trial court found the version of the defense weak, self-serving and
unreliable. On the basis of the evidence presented by the prosecution, the
court found appellant guilty as charged. Insisting on his innocence, appellant
readily filed his notice of appeal. 10 In his brief, appellant raises the following
errors allegedly committed by the trial court: chanrobles virtuallawlibrary:red
I indifference to a crime committed in his presence is highly incredible. While it
THE TRIAL COURT GRAVELY ERRED IN CONCLUDING THAT ACCUSED
APPELLANT TOOK FLIGHT OR ESCAPED AFTER THE NIGHT OF THE INCIDENT
OR IN FAILING TO CONSIDER THE MITIGATING CIRCUMSTANCE OF
VOLUNTARY SURRENDER.
II
THE TRIAL COURT ERRED IN DECLARING THAT THE KILLING WAS ATTENDED
BY THE QUALIFYING CIRCUMSTANCE OF TREACHERY, GRANTING ARGUENDO
THAT THE ACCUSED-APPELLANT IS GUILTY.
III
THE TRIAL COURT ERRED IN RULING THAT ACCUSED-APPELLANT IS THE
PERPETRATOR OF THE CRIME CHARGED, DESPITE THE FACT THAT ACCUSED
WAS NOT PROPERLY AND CONCLUSIVELY IDENTIFIED, AND THE ALLEGED
WEAPON NOT POSITIVELY TESTED.
IV
THAT THE TRIAL COURT GRAVELY ERRED IN DISREGARDING EVIDENCE
POINTING TO THE INNOCENCE OF THE ACCUSED-APPELLANT, THAT IS, THE
EXISTENCE OF EFFICIENT INTERVENING CAUSE, WHICH IS THE PROXIMATE
CAUSE OF THE DEATH OF THE VICTIM." 11
We shall take up in seriatim the challenges posed by appellant to the
credibility and sufficiency of the evidence for the prosecution. We shall also
consider the weight and credibility of his defense.
To begin with, while appellant denies that he fled and hid after the shooting
incident, we find that his behavior proves otherwise. Appellant admits that he
was at the scene of the crime at the time the shooting happened. Considering
that he is a law enforcement officer, the unusual incident should have at least
elicited his curiosity and he should have inquired about it. However, he chose
to ignore the incident and go his way. 12 That a policeman could display such
was true that he reported for duty the day after the incident, the following
day, he was ordered by his commanding officer restricted within the camp
pending investigation of the case. By this time, appellant must have learned
that his commanding officer had received a radio message and that he was
already a suspect. As the trial court noted, no superior officer will hold back
from any of his men involved, such a grave charge. Despite these, appellant
did not present himself before the police in El Salvador, Misamis Oriental.
Instead, he was conveniently nowhere to be found.
Thus, appellant’s first contention that he is entitled to the mitigating
circumstance of voluntary surrender, in our view, is quite untenable. The
essence of voluntary surrender is spontaneity and the intent of the accused to
give himself up and submit himself unconditionally to the authorities either
because he acknowledges his guilt or he wishes to save them the trouble and
expense necessarily incurred in his search and capture. 13 In this case, it was
appellant’s commanding officer who surrendered him to the custody of the
court. Being restrained by one’s superiors to stay within the camp without
submitting to the investigating authorities concerned, is not tantamount to
voluntary surrender as contemplated by law. The trial court is correct in not
appreciating the mitigating circumstance of voluntary surrender in appellant’s
favor.
On his second assignment of error, however, we find convincing merit.
Appellant asserts that the trial court erred in concluding that the killing was
qualified by treachery. On this point, we agree. For treachery to be
considered an aggravating circumstance, there must be proof that the
accused consciously adopted a mode of attack to facilitate the perpetration of
the killing without risk to himself. 14 In this case, the shooting was done at
the spur of the moment. As observed by the trial court, the victim had
shouted damning curses at the driver and the passengers of the jeepney. The
shooting was on instantaneous response to the cursing, as appellant correctly
claimed. 15 Treachery cannot be appreciated where the accused shot the
victim as a result of a rash and impetuous impulse rather than from a
deliberate act of the will. 16
Thirdly, appellant contends that the trial court erred in ruling that he was the
perpetrator of the crime. He claims he was not conclusively identified and the
alleged fatal weapon was not positively tested. True, prosecution witnesses
did not positively identify appellant as the one who fired the gun at the
victim. Nevertheless, direct evidence of the commission of the crime is not
the only matrix where the trial court may draw its conclusions and findings of
guilt. 17 It is settled that conviction may be based on circumstantial evidence
provided that the following requisites must concur: (a) there is more than
one circumstance; (b) the facts from which the inferences are derived are
proven; and (c) the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt. 18 Circumstantial evidence
could be of similar weight and probative value as direct evidence. From direct
evidence of a minor fact or facts, by a chain of circumstances the mind is led
intuitively, or by a conscious process of reasoning, towards a conviction that
from said fact or facts some other facts may be validly inferred. 19 No
greater degree of certainty is required when the evidence is circumstantial
than when it is direct. In either case, what is required is that there be proof
beyond reasonable doubt that the crime was committed and that the accused
committed the crime. 20
As noted by the trial court and the Solicitor General, the evidence for the
prosecution is replete with details, duly proven by the prosecution and to
some extent by admissions of the defense, enough to sustain the guilt of
appellant. These are: (1) The appellant was a former member of the
Philippine Constabulary and, during the incident, was a member of the
Philippine National Police. He was skilled in handling firearms. (2) The
appellant was issued a firearm (armalite rifle) by his command, which he was
then carrying with him before, during and after the incident. (3) At the
particular date, time and place of the incident, appellant was carrying his duly
issued armalite rifle inside the jeepney from where the gunfire came from.
(4) The appellant was sitting on the extreme front-right-side of the jeepney
where the sparks of the gunbursts were seen and heard by the witnesses. (5)
There were no other persons with a rifle inside the jeepney except the
appellant. (6) The empty shells of an armalite rifle were recovered at the
place where the fatal shooting occurred. (7) The appellant did not go forward
to the authorities to present himself until after a warrant of arrest was issued
and, in fact, until his actual arrest. 21
The aforecited circumstances taken together constitute an unbroken chain
leading to a reasonable conclusion that appellant, to the exclusion of others,
was responsible for the victim’s death. They constitute proof beyond
reasonable doubt that appellant was the perpetrator of the offense. It is the
height of desperation on appellant’s part to insist that there should be an
eyewitness to the precise moment the shot was fired considering the sudden
and completely unexpected shooting of the victim. 22 Here, circumstantial
evidence suffices.
Appellant’s insistence on his innocence in view of the absence of paraffin and
ballistic tests, in our view, is far from convincing. Suffice it to state that even
negative findings of the paraffin test do not conclusively show that a person
did not fire a gun. The absence of nitrates could be explained if a person
discharged a firearm with gloves on, or if he thoroughly washed his hands
thereafter. 23
Lastly, in his attempt to exculpate himself, appellant blames the death of the
victim on the lack of prompt and proper medical attention given. He insists
that the delay in giving proper medical attendance to the victim constitutes
an efficient intervening cause which exempts him from criminal responsibility.
This assertion is disingenuous, to say the least. Appellant never introduced
proof to support his allegation that the attending doctors in this case were
negligent in treating the victim. On the contrary, Dr. Ismael Naypa, Jr.,
testified that the attending doctor at the Cagayan de Oro Medical Center tried
his best in treating the victim by applying bandage on the injured leg to
prevent hemorrhage. He added that the victim was immediately given blood
transfusion at the Northern Mindanao Regional Hospital when the doctor
found out that the victim had a very low blood pressure. Thereafter, the
victim’s blood pressure stabilized. Then, the doctor operated the victim as the
main blood vessel of the victim’s right leg was cut, thereby causing massive
loss of blood. The surgery was finished in three hours. Unfortunately, the
victim died hours later. We cannot hold the attending doctors liable for the
death of the victim. The perceived delay in giving medical treatment to the
victim does not break at all the causal connection between the wrongful act
of the appellant and the injuries sustained by the victim. It does not
constitute efficient intervening cause. The proximate cause of the death of
the deceased is the shooting by the appellant. It is settled that anyone
inflicting injuries is responsible for all the consequences of his criminal act
such as death that supervenes in consequence of the injuries. The fact that
the injured did not receive proper medical attendance would not affect
appellant’s criminal responsibility. The rule is founded on the practical policy
of closing to the wrongdoer a convenient avenue of escape from the just
consequences of his wrongful act. If the rule were otherwise, many criminals
could avoid just accounting for their acts by merely establishing a doubt as to
the immediate cause of death. 24

To conclude, since the qualifying circumstance was not proved in this case,
the crime committed is only homicide, not murder. Under Article 249 of the
Revised Penal Code, the applicable penalty for homicide is only reclusion
temporal. As there is neither aggravating nor mitigating circumstance found
by the trial court or shown after a review of the records, the penalty in this
case shall be fixed in its medium period of reclusion temporal, which ranges
from a minimum of 14 years, 8 months and 1 day to a maximum of 17 years
and 4 months. Further applying the Indeterminate Sentence Law, the
imposable penalty shall be within the range of prision mayor as a minimum to
reclusion temporal in its medium period as the maximum. The range of
prision temporal is from 6 years and 1 day to 12 years. The span of reclusion
temporal, medium, is from 14 years, 8 months and 1 day to 17 years and 4
months. chanrobles.com : virtual law library

WHEREFORE, the assailed DECISION of the Regional Trial Court of Cagayan

de Oro City, Branch 22, in Criminal Case No. 91-1161, is hereby MODIFIED.
Appellant Orlando Acuram is hereby found GUILTY of HOMICIDE and
sentenced to suffer a prison term of 10 years of the medium period of prision
mayor, as minimum, to 15 years and 10 months and 1 day of the medium
period of reclusion temporal, as maximum, with accessory penalties provided
by law, to indemnify the heirs of the deceased Rolando Manabat in the
amount of P50,000.00, without subsidiary imprisonment in case of
insolvency, and to pay the costs.

SO ORDERED
G.R. No. 164749
ROMULO ABROGAR and ERLINDA ABROGAR, Petitioners
vs
COSMOS BOTTLING COMPANY and INTERGAMES, INC., Respondents
DECISION
BERSAMIN, J.:
This case involves a claim for damages arising from the negligence causing the death of
a participant in an organized marathon bumped by a passenger jeepney on the route of
the race. The issues revolve on whether the organizer and the sponsor of the marathon
were guilty of negligence, and, if so, was their negligence the proximate cause of the
death of the participant; on whether the negligence of the driver of the passenger
jeepney was an efficient intervening cause; on whether the doctrine of assumption of risk
was applicable to the fatality; and on whether the heirs of the fatality can recover
damages for loss of earning capacity of the latter who, being then a minor, had no gainful
employment.
The Case
By this appeal, the parents of the late Rommel Abrogar (Rommel), a marathon runner,
seek the review and reversal of the decision promulgated on March l 0, 2004,  whereby
1
the Court of Appeals (CA) reversed and set aside the judgment rendered in their favor on
May 10, 1991 by the Regional Trial Court (RTC), Branch 83, in Quezon City  finding and
2
declaring respondents Cosmos Bottling Company (Cosmos), a domestic soft-drinks
company whose products included Pop Cola, and Intergames, Inc. (Intergames), also a
domestic corporation organizing and supervising the 1st Pop Cola Junior Marathon" held
on June 15, 1980 in Quezon City, solidarily liable for damages arising from the untimely
death of Rommel, then a minor 18 years of age,  after being bumped by a recklessly
3
driven passenger jeepney along the route of the marathon.
Antecedents
The CA narrated the antecedents in the assailed judgment,  viz.:
4
[T]o promote the sales of "Pop Cola", defendant Cosmos, jointly with Intergames,
organized an endurance running contest billed as the "1st Pop Cola Junior Marathon"
scheduled to be held on June 15, 1980. The organizers plotted a 10-kilometer course
starting from the premises of the Interim Batasang Pambansa (IBP for brevity), through
public roads and streets, to end at the Quezon Memorial Circle. Plaintiffs' son Rommel
applied with the defendants to be allowed to participate in the contest and after
complying with defendants' requirements, his application was accepted and he was given
an official number. Consequently, on June 15, 1980 at the designated time of the
marathon, Rommel joined the other participants and ran the course plotted by the
defendants. As it turned out, the plaintiffs' (sic) further alleged, the defendants failed to
provide adequate safety and precautionary measures and to exercise the diligence
required of them by the nature of their undertaking, in that they failed to insulate and
protect the participants of the marathon from the vehicular and other dangers along the
marathon route. Rommel was bumped by a jeepney that was then running along the
route of the marathon on Don Mariano Marcos A venue (DMMA for brevity), and in spite
of medical treatment given to him at the Ospital ng Bagong Lipunan, he died later that
same day due to severe head injuries.
On October 28, 1980, the petitioners sued the respondents in the then Court of First
Instance of Rizal (Quezon City) to recover various damages for the untimely death of
Rommel (i.e., actual and compensatory damages, loss of earning capacity, moral
damages, exemplary damages, attorney's fees and expenses oflitigation). 5
Cosmos denied liability, insisting that it had not been the organizer of the marathon, but
only its sponsor; that its participation had been limited to providing financial assistance to
Intergames;  that the financial assistance it had extended to Intergames, the sole
6
organizer of the marathon, had been in answer to the Government's call to the private
sector to help promote sports development and physical fitness;  that the petitioners had
7
no cause of action against it because there was no privity of contract between the
participants in the marathon and Cosmos; and that it had nothing to do with the
organization, operation and running of the event. 8
As counterclaim, Cosmos sought attorney's fees and expenses of litigation from the
petitioners for their being unwarrantedly included as a defendant in the case. It averred a
cross-claim against Intergames, stating that the latter had guaranteed to hold Cosmos
"completely free and harmless from any claim or action for liability for any injuries or
bodily harm which may be sustained by any of the entries in the '1st Pop Cola Junior
Marathon' or for any damage to the property or properties of third parties, which may
likewise arise in the course of the race."  Thus, Cosmos sought to hold Intergames solely
9
liable should the claim of the petitioners prosper.10
On its part, Intergames asserted that Rommel's death had been an accident exclusively
caused by the negligence of the jeepney driver; that it was not responsible for the
accident; that as the marathon organizer, it did not assume the responsibilities of an
insurer of the safety of the participants; that it nevertheless caused the participants to be
covered with accident insurance, but the petitioners refused to accept the proceeds
thereof;  that there could be no cause of action against it because the acceptance and
11
approval of Rommel's application to join the marathon had been conditioned on his
waiver of all rights and causes of action arising from his participation in the
marathon;  that it exercised due diligence in the conduct of the race that the
12
circumstances called for and was appropriate, it having availed of all its know-how and
expertise, including the adoption and implementation of all known and possible safety
and precautionary measures in order to protect the participants from injuries arising from
vehicular and other forms of accidents;  and, accordingly, the complaint should be
13
dismissed.
In their reply and answer to counterclaim, the petitioners averred that contrary to its
claims, Intergames did not provide adequate measures for the safety and protection of
the race participants, considering that motor vehicles were traversing the race route and
the participants were made to run along the flow of traffic, instead of against it; that
Intergames did not provide adequate traffic marshals to secure the safety and protection
of the participants;  that Intergames could not limit its liability on the basis of the accident
14
insurance policies it had secured to cover the race participants; that the waiver signed by
Rommel could not be a basis for denying liability because the same was null and void for
being contrary to law, morals, customs and public policy;  that their complaint sufficiently
15
stated a cause of action because in no way could they be held liable for attorney's fees,
litigation expenses or any other relief due to their having abided by the law and having
acted honestly, fairly, in good faith by according to Intergames its due, as demanded by
the facts and circumstances. 16
At the pre-trial held on April 12, 1981, the parties agreed that the principal issue was
whether or not Cosmos and lntergames were liable for the death of Rommel because of
negligence in conducting the marathon. 17
Judgment of the RTC
In its decision dated May 10, 1991,  the RTC ruled as follows:
18
WHEREFORE, judgment is hereby rendered in favor of plaintiffs-spouses Romulo
Abrogar and Erlinda Abrogar and against defendants Cosmos Bottling Company, Inc.
and Intergames, Inc., ordering both defendants, jointly and severally, to pay and deliver
to the plaintiffs the amounts of Twenty Eight Thousand Sixty One Pesos and Sixty Three
Centavos (₱28,061.63) as actual damages; One Hundred Thousand Pesos
(₱100,000.00) as moral damages; Fifty Thousand Pesos (₱50,000.00) as exemplary
damages and Ten Percent (10%) of the total amount of One Hundred Seventy Eight
Thousand Sixty One Pesos and Sixty Three Centavos (₱178,061,63) or Seventeen
Thousand Eight Hundred Six Pesos and Sixteen Centavos (₱17,806.16) as attorney's
fees.
On the cross-claim of defendant Cosmos Bottling Company, Inc., defendant Intergames,
Inc, is hereby ordered to reimburse to the former any and all amounts which may be
recovered by the plaintiffs from it by virtue of this Decision.
SO ORDERED.
The RTC observed that the safeguards allegedly instituted by Intergames in conducting
the marathon had fallen short of the yardstick to satisfy the requirements of due diligence
as called for by and appropriate under the circumstances; that the accident had
happened because of inadequate preparation and Intergames' failure to exercise due
diligence;  that the respondents could not be excused from liability by hiding behind the
19
waiver executed by Rommel and the permission given to him by his parents because the
waiver could only be effective for risks inherent in the marathon, such a:s stumbling, heat
stroke, heart attack during the race, severe exhaustion and similar occurrences;  that the
20
liability of the respondents towards the participants and third persons was solidary,
because Cosmos, the sponsor of the event, had been the principal mover of the event,
and, as such, had derived benefits from the marathon that in turn had carried
responsibilities towards the participants and the public; that the respondents' agreement
to free Cosmos from any liability had been an agreement binding only between them,
and did not bind third persons; and that Cosmos had a cause of action against
Intergames for whatever could be recovered by the petitioners from Cosmos. 21
Decision of the CA
All the parties appealed to the CA.
The petitioners contended that the RTC erred in not awarding damages for loss of
earning capacity on the part of Rommel for the reason that such damages were not
recoverable due to Rommel not yet having finished his schooling; and that it would be
premature to award such damages upon the assumption that he would finish college and
be gainfully employed. 22
On their part, Cosmos and Intergames separately raised essentially similar errors on the
part of the RTC, to wit: (1) in holding them liable for the death of Rommel; (2) in finding
them negligent in conducting the marathon; (3) in holding that Rommel and his parents
did not assume the risks of the marathon; (4) in not holding that the sole and proximate
cause of the death of Rommel was the negligence of the jeepney driver; and (5) in
making them liable, jointly and solidarily, for damages, attorney's fees and expenses of
litigation.
23
The CA reduced the issues to four, namely:
1. Whether or not appellant Intergames was negligent in its conduct of the "1st Pop Cola
Junior Marathon" held on June 15, 1980 and if so, whether its negligence was the
proximate cause of the death of Rommel Abrogar.
2. Whether or not appellant Cosmos can be held jointly and solidarily liable with appellant
Intergames for the death of Rommel Abrogar, assuming that appellant Intergames is
found to have been negligent in the conduct of the Pop Cola marathon and such
negligence was the proximate cause of the death of Rommel Abrogar.
3. Whether or not the appellants Abrogar are entitled to be compensated for the "loss of
earning capacity" of their son Rommel.
4. Whether or not the appellants Abrogar are entitled to the actual, moral, and exemplary
damages granted to them by the Trial Court. 24
In its assailed judgment promulgated on March 10, 2004,  the CA ruled as follows:
25
As to the first issue, this Court finds that appellant Intergames was not negligent in
organizing the said marathon.
Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct to human affairs, would do, or doing
something which a prudent and reasonable man would not do.
The whole theory of negligence presuppose some uniform standard of behavior which
must be an external and objective one, rather than the individual judgment good or bad,
of the particular actor; it must be, as far as possible, the same for all persons; and at the
same time make proper allowance for the risk apparent to the actor for his capacity to
meet it, and for the circumstances under which he must act.
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 of
the acts involved in the particular case.
In the case at bar, the trial court erred in finding that the appellant Intergames failed to
satisfy the requirements of due diligence in the conduct of the race.
The trial court in its decision said that the accident in question could have been avoided if
the route of the marathon was blocked off from the regular traffic, instead of allowing the
runners to run together with the flow of traffic. Thus, the said court considered the
appellant Intergames at fault for proceeding with the marathon despite the fact that the
Northern Police District, MPF, Quezon City did not allow the road to be blocked off from
traffic.
This Court finds that the standard of conduct used by the trial court is not the ordinary
conduct of a prudent man in such a given situation. According to the said court, the only
way to conduct a safe road race is to block off the traffic for the duration of the event and
direct the cars and public utilities to take alternative routes in the meantime that the
marathon event is being held. Such standard is too high and is even inapplicable in the
case at bar because, there is no alternative route from IBP to Don Mariano Marcos to
Quezon City Hall.
The Civil Code provides that if the law or contract does not state the diligence which is to
be observed in the performance of an obligation that which is expected of a good father
of the family shall only be required. Accordingly, appellant Intergames is only bound to
exercise the degree of care that would be exercised by an ordinarily careful and prudent
man in the same position and circumstances and not that of the cautious man of more
than average prudence. Hence, appellant Intergames is only expected to observe
ordinary diligence and not extraordinary diligence.
In this case, the marathon was allowed by the Northern Police District, MPF, Quezon
City on the condition that the road should not be blocked off from traffic. Appellant
Intergames had no choice. It had to comply with it or else the said marathon would not
be allowed at all.
The trial court erred in contending that appellant Intergames should have looked for
alternative places in Metro Manila given the condition set by the Northern Police District,
MPF, Quezon City; precisely because as Mr. Jose Castro has testified the said route was
found to be the best route after a careful study and consideration of all the factors
involved. Having conducted several marathon events in said route, appellant Intergames
as well as the volunteer groups and the other agencies involved were in fact familiar with
the said route. And assuming that there was an alternative place suitable for the said
race, the question is would they be allowed to block off the said road from traffic?
Also, the trial court erred in stating that there was no adequate number of marshals,
police officers and personnel to man the race so as to prevent injury to the participants.
The general rule is that the party who relies on negligence for his cause of action has the
burden of proving the existence of the same, otherwise his action fails.
Here, the appellants-spouses failed to prove that there was inadequate number of
marshals, police officers, and personnel because they failed to prove what number is
considered adequate.
This court considers that seven (7) traffic operatives, five (5) motorcycle policemen,
fifteen (15) patrolmen deployed along the route, fifteen (15) boyscouts, twelve (12) CA
Ts, twenty (20) barangay tanods, three (3) ambulances and three (3) medical teams
were sufficient to stage a safe marathon.
Moreover, the failure of Mr. Jose R. Castro, Jr. to produce records of the lists of those
constituting the volunteer help during the marathon is not fatal to the case considering
that one of the volunteers, Victor Landingin of the Citizens Traffic Action (CTA) testified
in court that CTA fielded five units on June 15, 1980, assigned as follows: (1) at the
sphere head; (2) at the finish line; (3) tail ender; (4) & (5) roving.
The trial court again erred in concluding that the admission of P/Lt. Jesus Lipana, head
of the traffic policemen assigned at the marathon, that he showed up only at the finish
line means that he did not bother to check on his men and did not give them appropriate
instructions. P/Lt. Lipana in his testimony explained that he did not need to be in the start
of the race because he had predesignated another capable police officer to start the
race.
In addition, this Court finds that the precautionary measures and preparations adopted
by appellant Intergames were sufficient considering the circumstances surrounding the
case.
Appellant Intergames, using its previous experiences in conducting safe and successful
road races, took all the necessary precautions and made all the preparations for the
race. The initial preparations included: determination of the route to be taken; and an
ocular inspection of the same to see if it was well-paved, whether it had less corners for
easy communication and coordination, and whether it was wide enough to accommodate
runners and transportation. Appellant Intergames choose the Don Mariano Marcos
Avenue primarily because it was well-paved; had wide lanes to accommodate runners
and vehicular traffic; had less corners thus facilitating easy communication and
coordination among the organizers and cooperating agencies; and was familiar to the
race organizers and operating agencies. The race covered a ten-kilometer course from
the IBP lane to the Quezon City Hall Compound passing through the Don Mariano
Marcos A venue, which constituted the main stretch of the route. Appellant Intergames
scheduled the marathon on a Sunday morning, when traffic along the route was at its
lightest. Permission was sought from the then Quezon City Mayor Adelina Rodriguez for
the use of the Quezon City Hall Grandstand and the street fronting it as the finish line.
Police assistance was also obtained to control and supervise the traffic. The Quezon City
Traffic Detachment took charge of traffic control by assigning policemen to the traffic
route. The particular unit assigned during the race underwent extensive training and had
been involved in past marathons, including marathons in highly crowded areas. The
Philippine Boy Scouts tasked to assist the police and monitor the progress of the race;
and Citizens Traffic Action Group tasked with the monitoring of the race, which assigned
five units consisting of ten operatives, to provide communication and assistance were
likewise obtained. Finally, medical equipments and personnel were also requested from
Camp Aguinaldo, the Philippine Red Cross and the Hospital ng Bagong Lipunan.
Neither does this Court find the appellant Intergames' conduct of the marathon the
proximate cause of the death of Rommel Abrogar. Proximate cause has been defined as
that which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces injury, and without which the result would not have occurred.
It appears that Rommel Abrogar, while running on Don Mariano Marcos A venue and
after passing the Philippine Atomic Energy Commission Building, was bumped by a
jeepney which apparently was racing against a minibus and the two vehicles were trying
to crowd each other. In fact, a criminal case was filed against the jeepney driver by
reason of his having killed Rommel Abrogar.
This proves that the death of Rommel Abrogar was caused by the negligence of the
jeepney driver. Rommel Abrogar cannot be faulted because he was performing a legal
act; the marathon was conducted with the permission and approval of all the city officials
involved. He had the right to be there. Neither can the appellant Intergames be faulted,
as the organizer of the said marathon, because it was not negligent in conducting the
marathon.
Given the facts of this case, We believe that no amount of precaution can prevent such
an accident. Even if there were fences or barriers to separate the lanes for the runners
and for the vehicles, it would not prevent such an accident in the event that a negligent
driver loses control of his vehicle. And even if the road was blocked off from traffic, it
would still not prevent such an accident, if a jeepney driver on the other side of the road
races with another vehicle loses control of his wheel and as a result hits a person on the
other side of the road. Another way of saying this is: A defendant's tort cannot be
considered a legal cause of plaintiffs damage if that damage would have occurred just
the same even though the defendant's tort had not been committed.
This Court also finds the doctrine of assumption of risk applicable in the case at bar. As
explained by a well-known authority on torts:
"The general principle underlying the defense of assumption of risk is that a plaintiff who
voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the
defendant cannot recover for such harm. The defense may arise where a plaintiff, by
contract or otherwise, expressly agrees to accept a risk or harm arising from the
defendant's conduct, or where a plaintiff who fully understands a risk or harm caused by
the defendant's conduct, or by a condition created by the defendant, voluntarily chooses
to enter or remain, or to permit his property to enter or remain, within the area of such
risk, under circumstances manifesting his willingness to accept the risk.
xxxx
"Assumption of the risk in its primary sense arises by assuming through contract, which
may be implied, the risk of a known danger. Its essence is venturousness. It implies
intentional exposure to a known danger; It embraces a mental state of willingness; It
pertains to the preliminary conduct of getting into a dangerous employment or
relationship, it means voluntary incurring the risk of an accident, which may or may not
occur, and which the person assuming the risk may be careful to avoid; and it defeats
recovery because it is a previous abandonment of the right to complain if an accident
occurs.
"Of course, if the defense is predicated upon an express agreement the agreement must
be valid, and in the light of this qualification the rule has been stated that a plaintiff who,
by contract or otherwise, expressly agreed to accept a risk of harm arising from the
defendant's negligent or reckless conduct, cannot recover for such harm unless the
agreement is invalid as contrary to public policy.
xxxx
"The defense of assumption of risk presupposes: (1) that the plaintiff had actual
knowledge of the danger; (2) that he understood and appreciated the risk from the
danger; and (3) that he voluntarily exposed himself to such risk. x x x
"The term 'risk' as used in this connection applies to known dangers, and not to things
from which danger may possibly flow. The risk referred to is the particular risk, or one of
the risks, which the plaintiff accepted within the context of the situation in which he
placed himself and the question is whether the specific conduct or condition which
caused the injury was such a risk."
In this case, appellant Romulo Abrogar himself admitted that his son, Rommel Abrogar,
surveyed the route of the marathon and even attended a briefing before the race.
Consequently, he was aware that the marathon would pass through a national road and
that the said road would not be blocked off from traffic. And considering that he was
already eighteen years of age, had voluntarily participated in the marathon, with his
parents' consent, and was well aware of the traffic hazards along the route, he thereby
assumed all the risks of the race. This is precisely why permission from the participant's
parents, submission of a medical certificate and a waiver of all rights and causes of
action arising from the participation in the marathon which the participant or his heirs
may have against appellant Intergames were required as conditions in joining the
marathon.
In the decision of the trial court, it stated that the risk mentioned in the waiver signed by
Rommel Abrogar only involved risks such as stumbling, suffering heatstroke, heart attack
and other similar risks. It did not consider vehicular accident as one of the risks included
in the said waiver.
This Court does not agree. With respect to voluntary participation in a sport, the doctrine
of assumption of risk applies to any facet of the activity inherent in it and to any open and
obvious condition of the place where it is carried on. We believe that the waiver included
vehicular accidents for the simple reason that it was a road race run on public roads
used by vehicles. Thus, it cannot be denied that vehicular accidents are involved. It was
not a track race which is held on an oval and insulated from vehicular traffic. In a road
race, there is always the risk of runners being hit by motor vehicles while they train or
compete. That risk is inherent in the sport and known to runners. It is a risk they assume
every time they voluntarily engage in their sport.
Furthermore, where a person voluntarily participates in a lawful game or contest, he
assumes the ordinary risks of such game or contest so as to preclude recovery from the
promoter or operator of the game or contest for injury or death resulting therefrom.
Proprietors of amusements or of places where sports and games are played are not
insurers of safety of the public nor of their patrons.
In McLeod Store v. Vinson 213 Ky 667, 281 SW 799 (1926), it was held that a boy,
seventeen years of age, of ordinary intelligence and physique, who entered a race
conducted by a department store, the purpose of which was to secure guinea fowl which
could be turned in for cash prizes, had assumed the ordinary risks incident thereto and
was barred from recovering against the department store for injuries suffered when,
within catching distance, he stopped to catch a guinea, and was tripped or stumbled and
fell to the pavement, six or eight others falling upon him. The court further said: "In this
(the race) he was a voluntary participant. xxx The anticipated danger was as obvious to
him as it was to appellant (the department store). While not an adult, he was practically
17 years of age, of ordinary intelligence, and perfectly able to determine the risks
ordinarily incident to such games. An ordinary boy of that age is practically as well
advised as to the hazards of baseball, basketball, football, foot races and other games of
skill and endurance as is an adult
x x x."
In the case at bar, the "1st Pop Cola Junior Marathon" held on June 15, 1980 was a race
the winner of which was to represent the country in the annual Spirit of Pheidippides
Marathon Classic in Greece, if he equals or breaks the 29-minute mark for the 10-km.
race. Thus, Rommel Abrogar having voluntarily participated in the race, with his parents'
consent, assumed all the risks of the race.
Anent the second issue, this Court finds that appellant Cosmos must also be absolved
from any liability in the instant case.
This Court finds that the trial court erred in holding appellant Cosmos liable for being the
principal mover and resultant beneficiary of the event.
In its decision it said that in view of the fact that appellant Cosmos will be deriving certain
benefits from the marathon event, it has the responsibility to ensure the safety of all the
participants and the public. It further said that the stipulations in the contract entered into
by the two appellants, Cosmos and Intergames, relieving the former from any liability
does not bind third persons.
This Court does not agree with the reasoning of the trial court. The sponsorship contract
entered between appellant Cosmos and appellant Intergames specifically states that:
1. COSMOS BOTTLING CORPORATION shall pay INTERGAMES the amount of FIFTY
FIVE THOUSAND PESOS (₱55,000.00) representing full sponsorship fee and in
consideration thereof, INTERGAMES shall organize and stage a marathon race to be
called '1st POP COLA JUNIOR MARATHON.
xxxx
3. INTER GAMES shall draw up all the rules of the marathon race, eligibility
requirements of participants as well as provide all the staff required in the organization
and actual staging of the race. It is understood that all said staff shall be considered
under the direct employ of INTERGAMES which shall have full control over them.
xxxx
5. INTERGAMES shall secure all the necessary permits, clearances, traffic and police
assistance in all the areas covered by the entire route of the '1st POP COLA JUNIOR
MARATHON.
12. INTERGAMES shall hold COSMOS BOTTLING CORPORATION, completely free
and harmless from any claim or action for liability for any injuries or bodily harm which
may be sustained by any of the entries in the '1st POP COLA JUNIOR MARATHON', or
for any damages to the property or properties of third parties, which may likewise arise in
the course of the race.
From the foregoing, it is crystal clear that the role of the appellant Cosmos was limited to
providing financial assistance in the form of sponsorship. Appellant Cosmos' sponsorship
was merely in pursuance to the company's commitment for spo1is development of the
youth as well as for advertising purposes. The use of the name Cosmos was done for
advertising purposes only; it did not mean that it was an organizer of the said marathon.
As pointed out by Intergames' President, Jose Castro Jr., appellant Cosmos did not even
have the right to suggest the location and the number of runners.
To hold a defendant liable for torts, it must be clearly shown that he is the proximate
cause of the harm done to the plaintiff. The nexus or connection of the cause and effect,
between a negligent act and the damage done, must be established by competent
evidence.
In this case, appellant Cosmos was not negligent in entering into a contract with the
appellant Intergames considering that the record of the latter was clean and that it has
conducted at least thirty (30) road races.
Also there is no direct or immediate causal connection between the financial sponsorship
and the death of Rommel Abrogar. The singular act of providing financial assistance
without participating in any manner in the conduct of the marathon cannot be palmed off
as such proximate cause. In fact, the appellant spouses never relied on any
representation that Cosmos organized the race. It was not even a factor considered by
the appellants-spouses in allowing their son to join said marathon.
In view of the fact that both defendants are not liable for the death of Rommel Abrogar,
appellants-spouses are not entitled to actual, moral, exemplary damages as well as for
the "loss of earning capacity" of their son. The third and fourth issues are thus moot and
academic.
UPON THE VIEW WE TAKE OF THIS CASE, THUS, the judgment appealed from must
be, as it hereby is, REVERSED and SET ASIDE, and another entered DISMISSING the
complaint a quo. The appellants shall bear their respective costs.
SO ORDERED. 26
Issues
In this appeal, the petitioners submit that the CA gravely erred:
A.
x x x in reversing the RTC Decision, (and) in holding that respondent Intergames was not
negligent considering that:
1. Respondent Intergames failed to exercise the diligence of a good father of the family
in the conduct of the marathon in that it did not block off from traffic the marathon route;
and
2. Respondent Intergames' preparations for the race, including the number of marshal
during the marathon, were glaringly inadequate to prevent the happening of the injury to
its participants.
 B.
x x x in reversing the RTC Decision, (and) in holding that the doctrine of assumption of
risk finds application to the case at bar even though getting hit or run over by a vehicle is
not an inherent risk in a marathon race. Even assuming arguendo that deceased
Abrogar made such waiver as claimed, still there can be no valid waiver of one's right to
life and limb for being against public policy.
C.
x x x in reversing the RTC Decision, (and) in absolving respondent Cosmos from liability
to petitioners on the sole ground that respondent Cosmos' contract with respondent
Intergames contained a stipulation exempting the former from liability.
D.
x x x m reversing the RTC Decision and consequently holding respondents free from
liability, (and) in not awarding petitioners with actual, moral and exemplary damages for
the death of their child, Rommel Abrogar. 27
Ruling of the Court
The appeal is partly meritorious.
I
Review of factual issues is allowed because of
the conflict between the findings of fact
by the RTC and the CA on the issue of negligence
The petitioners contend that Intergames was negligent; that Cosmos as the sponsor and
Intergames as the organizer of the marathon both had the obligation to provide a
reasonably safe place for the conduct of the race byblocking the route of the race from
vehicular traffic and by providing adequate manpower and personnel to ensure the safety
of the participants; and that Intergames had foreseen the harm posed by the situation but
had not exercised the diligence of a good father of a family to avoid the risk;  hence, for
28
such omission, Intergames was negligent. 29
Refuting, Cosmos and Intergames submit that the latter as the organizer was not
negligent because it had undertaken all the precautionary measures to ensure the safety
of the race; and that there was no duty on the part of the latter as the organizer to keep a
racecourse "free and clear from reasonably avoidable elements that would [occasion] or
have the probable tendency, to occasion injury." 30
The issue of whether one or both defendants were negligent is a mixed issue of fact and
law. Does this not restrict the Court against reviewing the records in this appeal
on certiorari in order to settle the issue?
The Court can proceed to review the factual findings of the CA as an exception to the
general rule that it should not review issues of fact on appeal on certiorari. We have
recognized exceptions to the rule that the findings of fact of the CA are conclusive and
binding in the following instances: (1) when the findings are grounded entirely on
speculation, surmises or conjectures; (2) when the inference made is manifestly
mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the
judgment is based on a misapprehension of facts; (5) when the findings of facts are
conflicting; (6) when in making its findings the CA went beyond the issues of the case, or
its findings are contrary to the admissions of both the appellant and the appellee; (7)
when the findings are contrary to the trial court; (8) when the findings are conclusions
without citation of specific evidence on which they are based; (9) when the facts set forth
in the petition as well as in the petitioner's main and reply briefs are not disputed by the
respondent; (10) when the findings of fact are premised on the supposed absence of
evidence and contradicted by the evidence on record; and (11) when the CA manifestly
overlooked certain relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion.  Considering that the CA arrived at
31
factual findings contrary to those of the trial court, our review of the records in this appeal
should have to be made.
Negligence is 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.  Under Article 1173 of the Civil Code, it
32
consists of the "omission of that diligence which is required by the nature of the
obligation and corresponds with the circumstances of the person, of the time and of the
place."  The Civil Code makes liability for negligence clear under Article 2176,  and
33 34
Article 20. 35
To determine the existence of negligence, the following time-honored test has been set
in Picart v. Smith:
36
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
reasonable care and caution which an ordinarily prudent 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
We consider the "safeguards" employed and adopted by Intergames not adequate to
meet the requirement of due diligence.
For one, the police authorities specifically prohibited Intergames from blocking Don
Mariano Marcos Highway in order not to impair road accessibility to the residential
villages located beyond the IBP Lanc. 49

view of the facts involved in the particular case. Abstract speculation cannot here be of
much value but this much can be profitably said: Reasonable men govern their conduct However, contrary to the findings of the CA,  Intergames had a choice on where to stage
50

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
the marathon, considering its admission of the sole responsibility for the conduct of the
event, including the choice of location.
Moreover, the CA had no basis for holding that "the said route was found to be the best
route after a careful study and consideration of all the factors involved."  Castro, Jr.
51

harm. Reasonable foresight of harm, followed by the ignoring of the suggestion born of himself attested that the route had been the best one only within the vicinity of the
this prevision, is always necessary before negligence can be held to exist. Stated in Batasan Pambansa, to wit:
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
COURT
tortfeasor would have foreseen that an effect harmful to another was sufficiently probable
to warrant his foregoing the conduct or guarding against its consequences.  (bold
37

underscoring supplied for emphasis)
A careful review of the evidence presented, particularly the testimonies of the relevant
witnesses, in accordance with the foregoing guidelines reasonably leads to the
conclusion that the safety and precautionary measures undertaken by Intergames were
short of the diligence demanded by the circumstances of persons, time and place under
consideration. Hence, Intergames as the organizer was guilty of negligence.
q Was there any specific reason from ... Was there any specific reason why you used
this route from Batasan to City Hall? Was there any special reason?
a We have, your Honor, conducted for example the Milo Marathon in that area in the
Batasan Pambansa and we found it to be relatively safer than any other areas within the
vicinity. As a matter of fact, we had more runners in the Milo Marathon at that time and
nothing happened, your Honor. 52

The race organized by Intergames was a junior marathon participated in by young The chosen route (IBP Lane, on to Don Mariano Marcos Highway, and then to Quezon
persons aged 14 to 18 years. It was plotted to cover a distance of 10 kilometers, starting City Hall) was not the only route appropriate for the marathon. In fact, Intergames came
from the IBP Lane,  then going towards the Batasang Pambansa, and on to the circular
38 under no obligation to use such route especially considering that the participants, who
route towards the Don Mariano Marcos Highway,  and then all the way back to the
39 were young and inexperienced runners, would be running alongside moving vehicles.
Quezon City Hall compound where the finish line had been set.  In staging the event,
40

Intergames had no employees of its own to man the race,  and relied only on the
41
"cooperating agencies" and volunteers who had worked with it in previous races.  The
42
cooperating agencies included the Quezon City police, barangay tanods, volunteers from
Intergames further conceded that the marathon could have been staged on a blocked-off
route like Roxas Boulevard in Manila where runners could run against the flow of
vehicular traffic.  Castro, Jr. stated in that regard:
53

the Boy Scouts of the Philippines, the Philippine National Red Cross, the Citizens Traffic
Action Group, and the medical teams of doctors and nurses coming from the Office of COURT TO WITNESS
the Surgeon General and the Ospital ng Bagong Lipunan.  According to Jose R. Castro,
43

Jr., the President of Intergames, the preparations for the event included conducting an q What law are you talking about when you say I cannot violate the law?
ocular inspection of the route of the race,  sending out letters to the various cooperating
44

agencies,  securing permits from proper authorities,  putting up directional signs,  and
45 46 47
a The police authority, your Honor, would not grant us permit because that is one of the
setting up the water stations.
48
conditions that if we are to conduct a race we should run the race in accordance with the
flow of traffic.
q Did you not inform the police this is in accordance with the standard safety measures
for a marathon race?
a I believed we argued along that line but but (sic) again, if we insist the police again
would not grant us any permit like ... except in the case of Roxas Boulevard when it is
normally closed from 8 a.m. when you can run against the flow of traffic.
q You were aware for a runner to run on the same route of the traffic would be risky
because he would not know what is coming behind him?
a I believed we talked of the risk, your Honor when the risk has been minimized to a
certain level. Yes, there is greater risk when you run with the traffic than when you run
against the traffic to a certain level, it is correct but most of the races in Manila or
elsewhere are being run in accordance with the flow of the traffic.
xxxx
ATTY. VINLUAN
q Following the observation of the Court, considering the local condition, you will agree
with me the risks here are greater than in the United States where drivers on the whole
follow traffic rules?
a That is correct.
q And because of that fact, it is with all the more reason that you should take all
necessary precautions to insure the safety of the runners?
a That is correct. 54
xxxx
COURT:
xxxx
Q In your case in all the marathons that you had managed, how many cases have you
encountered where the routes are blocked off for vehicular traffic?
A These are the International Marathon, Philippines Third World Marathon and the Milo
Marathon. We are blocking them to a certain length of time.
Q What was the purpose of blocking the routes? Is it for the safety of the runners or just
a matter of convenience?
A In blocking off the route, Your Honor, it is light easier for the runners to run without
impediments to be rendered by the people or by vehicles and at the same time it would
be also advantageous if the road will be blocked off for vehicle traffic permitted to us by
the traffic authorities.
Q So, in this case, you actually requested for the traffic authorities to block off the route?
A As far as I remember we asked Sgt. Pascual to block off the route but considering that
it is the main artery to Fairview Village, it would not be possible to block off the route
since it will cause a lot of inconvenience for the other people in those areas and jeepney
drivers.
Q In other words, if you have your way you would have opted to block off the route.
A Yes, Your Honor.
Q But the fact is that the people did not agree.
A Yes, Your Honor, and it is stated in the permit given to us. 55
Based on the foregoing testimony of Castro, Jr., Intergames had full awareness of the
higher risks involved in staging the race alongside running vehicles, and had the option
to hold the race in a route where such risks could be minimized, if not eliminated. But it
did not heed the danger already foreseen, if not expected, and went ahead with staging
the race along the plotted route on Don Mariano Marcos Highway on the basis of its
supposedly familiarity with the route. Such familiarity of the organizer with the route and
the fact that previous races had been conducted therein without any untoward
incident  were not in themselves sufficient safeguards. The standards for avoidance of
56
injury through negligence further required Intergames to establish that it did take
adequate measures to avert the foreseen danger, but it failed to do so.
Another failing on the part of Intergames was the patent inadequacy of the personnel to
man the route. As borne by the records, Intergames had no personnel of its own for that
purpose, and relied exclusively on the assistance of volunteers, that is, "seven (7) traffic
operatives, five (5) motorcycle policemen, fifteen (15) patrolmen deployed along the
route, fifteen (15) boy scouts, twelve (12) CATs, twenty (20) barangay tanods, three (3)
ambulances and three (3) medical teams"  to ensure the safety of the young runners
57
who would be running alongside moving vehicular traffic, to make the event safe and well
coordinated.
Although the party relying on negligence as his cause of action had the burden of proving
the existence of the same, Intergames' coordination and supervision of the personnel
sourced from the cooperating agencies did not satisfy the diligence required by the
relevant circumstances. In this regard, it can be pointed out that the number of deployed
personnel, albeit sufficient to stage the marathon, did not per se ensure the safe conduct
of the race without proof that such deployed volunteers had been properly coordinated
and instructed on their tasks.
That the proper coordination and instruction were crucial elements for the safe conduct
of the race was well known to Intergames. Castro, Jr. stated as much, to wit:
ATTY. LOMBOS:
xxxx
Q You also said that if you block off one side of the road, it is possible that it would be
more convenient to hold the race in that matter. Will you tell the Honorable Court if it is
possible also to hold a race safely if the road is not blocked off?
A Yes, sir.
Q How is it done.
A You can still run a race safely even if it is partially blocked off as long as you have the
necessary cooperation with the police authorities, and the police assigned along the
route of the race and the police assigned would be there, this will contribute the safety of
the participants, and also the vehicular division, as long as there are substantial
publicities in the newspapers, normally they will take the precautions in the use of the
particular route of the race.
Q Let me clarify this. Did you say that it is possible to hold a marathon safely if you have
this traffic assistance or coordination even if the route is blocked or not blocked?
A It is preferable to have the route blocked but in some cases, it would be impossible for
the portions of the road to be blocked totally. The route of the race could still be safe for
runners if a proper coordination or the agencies are notified especially police detailees to
man the particular stage. 58
Sadly, Intergames' own evidence did not establish the conduct of proper coordination
and instruction. Castro, Jr. described the action plan adopted by Intergames in the
preparation for the race, as follows:
COURT
a Did you have any rehearsal let us say the race was conducted on June 15, now before
June 15 you call a meeting of all these runners so you can have more or less a map-up
and you would indicate or who will be stationed in their places etc. Did you have such a
rehearsal?
WITNESS
a It is not being done, your honor, but you have to specify them. You meet with the group
and you tell them that you wanted them to be placed in their particular areas which we
pointed out to them for example in the case of the Barangay Tanod, I specifically
assigned them in the areas and we sat down and we met.
COURT
q Did you have any action, plan or brochure which would indicate the assignment of each
of the participating group?
WITNESS
a Normally, sir, many of the races don't have that except when they called them to
meeting either as a whole group or the entire cooperating agency or meet them per
group.
COURT
q Did you have a check list of the activities that would have to be entered before the
actual marathon some kind of system where you will indicate this particular activity has to
be checked etc. You did not have that?
WITNESS
q Are you asking, your honor, as a race director of I will check this because if I do that, I
won't have a race because that is not being done by any race director anywhere in the
world?
COURT
I am interested in your planning activities.
q In other words, what planning activities did you perform before the actual marathon?
a The planning activities we had, your honor, was to coordinate with the different a I cannot recall at the moment.
agencies involved informing them where they would be more or less placed.
q How about with Mr. Serrano, how many times did you meet with him before the race?
COURT
a If my mind does not fail me, your honor, I met him twice because he lives just within
q Let us go to ... Who was supposed to be coordinating with you as to the citizens action our area and we always see each other.
group who was your ... you were referring to a person who was supposed to be manning
these people and who was the person whom you coordinate with the Traffic Action q How about with Panelo, how many times did you meet him?
Group?
a With Mr. Panelo, I did not meet with them, your honor.
WITNESS
q Was there an occasion where before the race you met with these three people together
a I can only remember his name ... his family name is Esguerra. since you did not meet with Panelo anytime? Was there anytime where you met with
Serrano and Esguerra together?
q How about with the Tanods?
WITNESS
a With the Tanods his name is Pedring Serrano.
a No, your honor.
q And with the Boys Scouts? (sic)
COURT
a And with the Boys Scouts of the Phils. (sic) it is Mr. Greg Panelo.
g When you met once with Esguerra, where did you meet? What place?
COURT
a I cannot recall at the moment, your honor, since it was already been almost six years
q When did you last meet rather how many times did you meet with Esguerra before the ago.
marathon on June 15?
g How about Serrano, where did you meet him?
WITNESS
a We met in my place.
a The Citizens Traffic Action Group, your honor, had been with me m previous races.
q From your house? He went in your house?
COURT
a Yes, your honor.
q I am asking you a specific question. I am not interested in the Citizen Traffic Action
Group. The marathon was on June 15, did you meet with him on June 14, June 13 or q So you did not have let us say a ... you don't have records of your meetings with these
June 12? people?

a We met once, your honor, I cannot remember the date. WITNESS

q You don't recall how many days before? a With the Citizens Traffic Action, your honor?
COURT a That is correct, sir.

a Yes. ATTY. VINLUAN

WITNESS Based on the question of the Court and your answer to the question of the Court, are you
trying to say that this planning before any race of all these groups who have committed
a I don't have, your honor. to help in the race, this is not done in any part of the world?

COURT WITNESS

q Because you are familiar, I was just thinking this is an activity which requires planning
etc., what I was thinking when you said this was never done in any part of the world but
all activities it has to be planned. There must be some planning, now are you saying that
in this particular case you had no written plan or check list of activities what activities
have to be implemented on a certain point and time, who are the persons whom you
must meet in a certain point and time.
WITNESS
a In the latter years when your race became bigger and bigger, this is being done now
slowly.
ATTY. VINLUAN
q But for this particular race you will admit that you failed to do it when you have to
coordinate and even have a dry run of the race you failed to do all of that in this particular
race, yes or no?

a Normally, we did not have that, your honor, except the check list of all the things that a Because there was ...
should be ready at a particular time prior to the race and the people to be involved and
we have a check list to see to it that everything would be in order before the start of the COURT
race.
It was already answered by him when I asked him. The Court has ... Everybody has a
COURT copy how of this time planner. Any activity or even meeting a girlfriend or most people
plan.
Proceed.
A TTY. F .M. LOMBOS
ATTY. VINLUAN
If your honor please, before we proceed ...
q Following the question of the Court Mr. Castro, did you meet with Lt. Depano of the
Police Department who were supposed to supervise the police officers assigned to help WITNESS
during the race?
In the latter years, your honor, when your race became bigger and bigger, this is being
a I did not meet with him, sir. done now slowly.

q You did not meet with him? q For this particular race you will admit that you failed to do it?

a I did not meet with him. a Because there was no need, sir. 59

q In fact, ever before or during the race you had no occasion to talk to Lt. Depano. Is that Probably sensing that he might have thereby contradicted himself, Castro, Jr. clarified on
correct? re-direct examination:
ATTY. LOMBOS
Q Now, you also responded to a question during the same hearing and this appears on
page 26 of the transcript that you did not hold any rehearsal or dry run for this particular
marathon. Could you tell the Court why you did not hold any such rehearsal or dry run?
A Because I believe there was no need for us to do that since we have been doing this
for many years and we have been the same people, same organization with us for so
many years conducting several races including some races in that area consisting of
longer distances and consisting of more runners, a lot more runners in that areay (sic) so
these people, they know exactly what to do and there was no need for us to have a
rehearsal. I believe this rehearsal would only be applicable if I am new and these people
are new then, we have to rehearse.
ATTY. LOMBOS
q You also stated Mr. Castro that you did not have any action plan or brochure which you
would indicate, an assignment of each of the participating group as to what to do during
the race. Will you please explain what you meant when you said you have no action plan
or brochure?
WITNESS
a What I mean of action plan, I did not have any written action plan but I was fully aware
of what to do. I mean, those people did not just go there out of nowhere. Obviously, there
was an action on my part because I have to communicate with them previously and to
tell them exactly what the race is all about; where to start; where it would end, and that is
the reason why we have the ambulances, we have the Boy Scouts, we have the CT A,
we have the police, so it was very obvious that there was a plan of action but not written
because I know pretty well exactly what to do. I was dealing with people who have been
doing this for a long period of time.
60
While the level of trust Intergames had on its volunteers was admirable, the coordination
among the cooperating agencies was predicated on circumstances unilaterally assumed
by Intergames. It was obvious that Intergames' inaction had been impelled by its belief
that it did not need any action plan because it had been dealing with people who had
been manning similar races for a long period of time.
The evidence presented undoubtedly established that Intergames' notion of coordination
only involved informing the cooperating agencies of the date of the race, the starting and
ending points of the route, and the places along the route to man. Intergames did not
conduct any general assembly with all of them, being content with holding a few sporadic
meetings with the leaders of the coordinating agencies. It held no briefings of any kind on
the actual duties to be performed by each group of volunteers prior to the race. It did not
instruct the volunteers on how to minimize, if not avert, the risks of danger in manning
the race, despite such being precisely why their assistance had been obtained in the first
place.
Intergames had no right to assume that the volunteers had already been aware of what
exactly they would be doing during the race. It had the responsibility and duty to give to
them the proper instructions despite their experience from the past races it had
organized considering that the particular race related to runners of a different level of
experience, and involved different weather and environmental conditions, and traffic
situations. It should have remembered that the personnel manning the race were not its
own employees paid to perform their tasks, but volunteers whose nature of work was
remotely associated with the safe conduct of road races. Verily, that the volunteers
showed up and assumed their proper places or that they were sufficient in number was
not really enough. It is worthy to stress that proper coordination in the context of the
event did not consist in the mere presence of the volunteers, but included making sure
that they had been properly instructed on their duties and tasks in order to ensure the
safety of the young runners.
It is relevant to note that the participants of the 1st Pop Cola Junior Marathon were
mostly minors aged 14 to 18 years joining a race of that kind for the first time. The
combined factors of their youth, eagerness and inexperience ought to have put a
reasonably prudent organizer on higher guard as to their safety and security needs
during the race, especially considering Intergames' awareness of the risks already
foreseen and of other risks already known to it as of similar events in the past organizer.
There was no question at all that a higher degree of diligence was required given that
practically all of the participants were children or minors like Rommel; and that the law
imposes a duty of care towards children and minors even if ordinarily there was no such
duty under the same circumstances had the persons involved been adults of sufficient
discretion.  In that respect, Intergames did not observe the degree of care necessary as
61
the organizer, rendering it liable for negligence. As the Court has emphasized in Corliss
v. The Manila Railroad Company,  where the danger is great, a high degree of care is
62
necessary, and the failure to observe it is a want of ordinary care under the
circumstances.  63
The circumstances of the persons, time and place required far more than what
Intergames undertook in staging the race. Due diligence would have made a reasonably
prudent organizer of the race participated in by young, inexperienced or beginner
runners to conduct the race in a route suitably blocked off from vehicular traffic for the
safety and security not only of the participants but the motoring public as well. Since the
marathon would be run alongside moving vehicular traffic, at the very least, Intergames
ought to have seen to the constant and closer coordination among the personnel
manning the route to prevent the foreseen risks from befalling the participants. But this it
sadly failed to do.
 II
The negligence of Intergames as the organizer
was the proximate cause of the death of Rommel
As earlier mentioned, the CA found that Rommel, while running the marathon on Don
Mariano Marcos A venue and after passing the Philippine Atomic Energy Commission
Building, was bumped by a passenger jeepney that was racing with a minibus and two
other vehicles as if trying to crowd each other out. As such, the death of Rommel was
caused by the negligence of the jeepney driver.
Intergames staunchly insists that it was not liable, maintaining that even
assuming arguendo that it was negligent, the negligence of the jeepney driver was the
proximate cause of the death of Rommel; hence, it should not be held liable.
Did the negligence of Intergames give rise to its liability for the death of ommel
notwithstanding the negligence of the jeepney driver?
In order for liability from negligence to arise, there must be not only proof of damage and
negligence, but also proof that the damage was the consequence of the negligence. The
Court has said in Vda. de Gregorio v. Go Chong Bing: 64
x x x Negligence as a source of obligation both under the civil law and in American cases
was carefully considered and it was held:
We agree with counsel for appellant that under the Civil Code, as under the generally
accepted doctrine in the United States, the plaintiff in an action such as that under
consideration, in order to establish his right to a recovery, must establish by competent
evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally or some person for
whose acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the damage." (Taylor
vs. Manila Electric Railroad and Light Co., supra, p. 15.)
In accordance with the decision of the Supreme Court of Spain, in order that a person
may be held guilty for damage through negligence, it is necessary that there be an act or
omission on the part of the person who is to be charged with the liability and that damage
is produced by the said act or omission.  (Emphasis supplied)
65
We hold that the negligence of Intergames was the proximate cause despite the
intervening negligence of the jeepney driver.
Proximate cause is "that which, in natural and continuous sequence, unbroken by any
new cause, produces an event, and without which the event would not have
occurred."  In Vda. de Bataclan, et al. v. Medina,  the Court, borrowing from American
66 67
Jurisprudence, has more extensively defined proximate cause thusly:
"* * * 'that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury and without which the result would not have
occurred.' And more comprehensively, 'the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the cause which first acted, under
such circumstances that the person responsible for the first event should, as an 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." 68
To be considered the proximate cause of the injury, the negligence need not be the
event closest in time to the injury; a cause is still proximate, although farther in time in
relation to the injury, if the happening of it set other foreseeable events into motion
resulting ultimately in the damage.  According to an authority on civil law: "A prior and
69 70
remote cause cannot be made the basis of an action, if such remote cause did nothing
more than furnish the condition or give rise to the occasion by which the injury was made
possible, if there intervened between such prior or remote cause and the injury a distinct,
successive, unrelated and efficient cause, even though such injury would not have
happened but for such condition or occasion. If no damage exists in the condition except
because of the independent cause, such condition was not the proximate cause. And if
an independent negligent act or defective condition sets into operation the
circumstances which result in injury because of the prior defective condition, such act or
condition is the proximate cause."
Bouvier adds:
In many cases important questions arise as to which, in the chain of acts tending to the
production of a given state of things, is to be considered the responsible cause. It is not
merely distance of place or of causation that renders a cause remote. The cause nearest
in the order of causation, without any efficient concurring cause to produce the result,
may be considered the direct cause. In the course of decisions of cases in which it is
necessary to determine which of several causes is so far responsible for the happening
of the act or injury complained of, what is known as the doctrine of proximate cause is
constantly resorted to in order to ascertain whether the act, omission, or negligence of
the person whom it is sought to hold liable was in law and in fact responsible for the
result which is the foundation of the action.
71
xxxx
The question of proximate cause is said to be determined, not by the existence or non-
existence of intervening events, but by their character and the natural connection
between the original act or omission and the injurious consequences. When the
intervening cause is set in operation by the original negligence, such negligence is still
the proximate cause; x x x If the party guilty of the first act of negligence might have
anticipated the intervening cause, the connection is not broken; x x x. Any number of
causes and effects may intervene, and if they arc such as might with reasonable
diligence have been foreseen, the last result is to be considered as the proximate result.
But whenever a new cause intervenes, which is not a consequence of the first wrongful
cause, which is not under control of the wrongdoer, which could not have been foreseen
by the exercise of reasonable diligence, and except for which the final injurious
consequence could not have happened, then such injurious consequence must be
deemed too remote; x x x.  (bold underscoring supplied for emphasis)
72
An examination of the records in accordance with the foregoing concepts supports the
conclusions that the negligence of Intergames was the proximate cause of the death of
Rommel; and that the negligence of the jeepney driver was not an efficient intervening
cause.
First of all, Intergames' negligence in not conducting the race in a road blocked off from
vehicular traffic, and in not properly coordinating the volunteer personnel manning the
marathon route effectively set the stage for the injury complained of. The submission that
Intergames had previously conducted numerous safe races did not persuasively
demonstrate that it had exercised due diligence because, as the trial court pointedly
observed, "[t]hey were only lucky that no accident occurred during the previous marathon
races but still the danger was there."
73
Secondly, injury to the participants arising from an unfortunate vehicular accident on the
route was an event known to and foreseeable by Intergames, which could then have
been avoided if only Intergames had acted with due diligence by undertaking the race on
a blocked-off road, and if only Intergames had enforced and adopted more efficient
supervision of the race through its volunteers.
And, thirdly, the negligence of the jeepney driver, albeit an intervening cause, was not
efficient enough to break the chain of connection between the negligence of Intergames
and the injurious consequence suffered by Rommel. An intervening cause, to be
considered efficient, must be "one not produced by a wrongful act or omission, but
independent of it, and adequate to bring the injurious results. Any cause intervening
between the first wrongful cause and the final injury which might reasonably have been
foreseen or anticipated by the original wrongdoer is not such an efficient intervening
cause as will relieve the original wrong of its character as the proximate cause of the
final injury."
74
In fine, it was the duty of Intergames to guard Rommel against the foreseen risk, but it
failed to do so.
III
The doctrine of assumption of risk
had no application to Rommel
Unlike the R TC, the CA ruled that the doctrine of assumption of risk applied herein;
hence, it declared Intergames and Cosmos not liable. The CA rendered the following
rationalization to buttress its ruling, to wit:
In this case, appellant Romulo Abrogar himself admitted that his son, Rommel Abrogar,
surveyed the route of the marathon and even attended a briefing before the race.
Consequently, he was aware that the marathon would pass through a national road and
that the said road would not be blocked off from traffic. And considering that he was
already eighteen years of age, had voluntarily participated in the marathon, with his
parents' consent, and was well aware of the traffic hazards along the route, he thereby
assumed all the risks of the race. This is precisely why permission from the participant's
parents, submission of a medical certificate and a waiver of all rights and causes of
action arising from the participation in the marathon which the participant or his heirs
may have against appellant Intergames were required as conditions in joining the
marathon.
In the decision of the trial court, it stated that the risk mentioned in the waiver signed by
Rommel Abrogar only involved risks such as stumbling, suffering heatstroke, heart attack
and other similar risks. It did not consider vehicular accident as one of the risks included
in the said waiver.
This Court does not agree. With respect to voluntary participation in a sport, the doctrine
of assumption of risk applies to any facet of the activity inherent in it and to any open and
obvious condition of the place where it is carried on. We believe that the waiver included
vehicular accidents for the simple reason that it was a road race run on public roads
used by vehicles. Thus, it cannot be denied that vehicular accidents are involved. It was
not a track race which is held on an oval and insulated from vehicular traffic. In a road
race, there is always the risk of runners being hit by motor vehicles while they train or
compete. That risk is inherent in the sport and known to runners. It is a risk they assume
every time they voluntarily engage in their sport.
Furthermore, where a person voluntarily participates in a lawful game or contest, he
assumes the ordinary risks of such game or contest so as to preclude recovery from the
promoter or operator of the game or contest for injury or death resulting therefrom.
Proprietors of amusements or of places where sports and games are played are not
insurers of safety of the public nor of their patrons.
In Mc Leod Store v. Vinson 213 Ky 667, 281 SW 799 (1926), it was held that a boy,
seventeen years of age, of ordinary intelligence and physique, who entered a race
conducted by a department store, the purpose of which was to secure guinea fowl which
could be turned in for cash prizes, had assumed the ordinary risks incident thereto and
was barred from recovering against the department store for injuries suffered when,
within catching distance, he stopped to catch a guinea, and was tripped or stumbled and
fell to the pavement, six or eight others falling upon him. The comi further said: "In this
(the race) he was a voluntary participant. x x x The anticipated danger was as obvious to
him as it was to appellant (the department store). While not an adult, he was practically
17 years of age, of ordinary intelligence, and perfectly able to determine the risks
ordinarily incident to such games. An ordinary boy of that age is practically as well
advised as to the hazards of baseball, basketball, football, foot races and other games of
skill and endurance as is an adult
x x x."
In the case at bar, the "1st Pop Cola Junior Marathon" held on June 15, 1980 was a race
the winner of which was to represent the country in the annual Spirit of Pheidippides
Marathon Classic in Greece, if he equals or breaks the 29-minute mark for the 19-km.
race. Thus, Rommel Abrogar having voluntarily participated in the race, with his parents'
consent, assumed all the risks of the race.75
The doctrine of assumption of risk means that one who voluntarily exposes himself to an
obvious, known and appreciated danger assumes the risk of injury that may result
therefrom.  It rests on the fact that the person injured has consented to relieve the
76
defendant of an obligation of conduct toward him and to take his chance of injury from a
known risk, and whether the former has exercised proper caution or not is immaterial.  In
77
other words, it is based on voluntary consent, express or implied, to accept danger of a
known and appreciated risk; it may sometimes include acceptance of risk arising from
the defendant's negligence, but one does not ordinarily assume risk of any negligence
which he does not know and appreciate.78 As a defense in negligence cases, therefore,
the doctrine requires the concurrence of three elements, namely: (1) the plaintiff must
know that the risk is present; (2) he must further understand its nature; and (3) his choice
to incur it must be free and voluntary.  According to Prosser:  "Knowledge of the risk is
79 80
the watchword of assumption of risk."
Contrary to the notion of the CA, the concurrence of the three elements was not shown
to exist. Rommel could not have assumed the risk of death when he participated in the
race because death was neither a known nor normal risk incident to running a race.
Although he had surveyed the route prior to the race and should be presumed to know
that he would be running the race alongside moving vehicular traffic, such knowledge of
the general danger was not enough, for some authorities have required that the
knowledge must be of the specific risk that caused the harm to him.  In theory, the
81
standard to be applied is a subjective one, and should be geared to the particular plaintiff
and his situation, rather than that of the reasonable person of ordinary prudence who
appears in contributory negligence.  He could not have appreciated the risk of being
82
fatally struck by any moving vehicle while running the race. Instead, he had every reason
to believe that the organizer had taken adequate measures to guard all participants
against any danger from the fact that he was participating in an organized marathon.
Stated differently, nobody in his right mind, including minors like him, would have joined
the marathon if he had known of or appreciated the risk of harm or even death from
vehicular accident while running in the organized running event. Without question, a
marathon route safe and free from foreseeable risks was the reasonable expectation of
every runner participating in an organized running event.
Neither was the waiver by Rommel, then a minor, an effective form of express or implied
consent in the context of the doctrine of assumption of risk. There is ample authority,
cited in Prosser,  to the effect that a person does not comprehend the risk involved in a
83
known situation because of his youth,  or lack of information or experience,  and thus will
84 85
not be taken to consent to assume the risk.
Clearly, the doctrine of assumption of risk does not apply to bar recovery by the
petitioners.
IV
Cosmos is not liable for the negligence
of Intergames as the organizer
Nonetheless, the CA did not err in absolving Cosmos from liability.
The sponsorship of the marathon by Cosmos was limited to financing the race. Cosmos
did nothing beyond that, and did not involve itself at all in the preparations for the actual
conduct of the race. This verity was expressly confirmed by Intergames, through Castro,
Jr., who declared as follows:
COURT
q Do you discuss all your preparation with Cosmos Bottling Company?
a As far as the Cosmos Bottling Company (sic) was a sponsor as to the actual conduct of
the race, it is my responsibility. The conduct of the race is my responsibility. The sponsor
has nothing to do as well as its code of the race because they are not the ones running. I
was the one running. The responsibility of Cosmos was just to provide the sponsor's
money.
COURT
q They have no right to who (sic) suggest the location, the number of runners, you
decide these yourself without consulting them?
a Yes, your honor. 86
We uphold the finding by the CA that the role of Cosmos was to pursue its corporate
commitment to sports development of the youth as well as to serve the need for
advertising its business. In the absence of evidence showing that Cosmos had a hand in
the organization of the race, and took part in the determination of the route for the race
and the adoption of the action plan, including the safety and security measures for the
benefit of the runners, we cannot but conclude that the requirement for the direct or
immediate causal connection between the financial sponsorship of Cosmos and the
death of Rommel simply did not exist. Indeed, Cosmos' mere sponsorship of the race
was, legally speaking, too remote to be the efficient and proximate cause of the injurious
consequences.
V them. Indeed, the failure of Intergames to adopt the basic precautionary measures for
Damages
Article 2202 of the Civil Code lists the damages that the plaintiffs in a suit upon crimes
and quasi-delicts can recover from the defendant, viz.:
Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which
are the natural and probable consequences of the act or omission complained of. It is not
necessary that such damages have been foreseen or could have reasonably been
foreseen by the defendant.
Accordingly, Intergames was liable for all damages that were the natural and probable
consequences of its negligence. In its judgment, the RTC explained the award of
damages in favor of the petitioners, as follows:
As borne by the evidence on record, the plaintiffs incurred medical, hospitalization and
burial expenses for their son in this aggregate amount of ₱28,061.65 (Exhibits "D'', "D-1"
and "D-2"). In instituting this case, they have paid their lawyer ₱5,000 as initial deposit,
their arrangement being that they would pay attorney's fees to the extent of 10% of
whatever amount would be awarded to them in this case.
For the loss of a son, it is unquestionable that plaintiffs suffered untold grief which should
entitle them to recover moral damages, and this Court believes that if only to assuage
somehow their untold grief but not necessarily to compensate them to the fullest, the
nominal amount of ₱l00,00.00 should be paid by the defendants.
For failure to adopt elementary and basic precautionary measure to insure the safety of
the participants so that sponsors and organizers of sports events should exercise utmost
diligence in preventing injury to the participants and the public as well, exemplary
damages should also be paid by the defendants and this Court considers the amount of
₱50,000.00
as reasonable. 87
Although we will not disturb the foregoing findings and determinations, we need to add to
the justification for the grant of exemplary damages. Article 2231 of the Civil
Code stipulates that exemplary damages are to be awarded in cases of quasi-delict if the
defendant acted with gross negligence. The foregoing characterization by the RTC
indicated that Intergames' negligence was gross. We agree with the characterization.
Gross negligence, according to Mendoza v. Spouses Gomez,  is the absence of care or
88
diligence as to amount to a reckless disregard of the safety of persons or property; it
evinces a thoughtless disregard of consequences without exerting any effort to avoid
the safety of the minor participants like Rommel was in reckless disregard of their safety.
Conduct is reckless when it is an extreme departure from ordinary care, in a situation in
which a high degree of danger is apparent; it must be more than any mere mistake
resulting from inexperience, excitement, or confusion, and more than mere
thoughtlessness or inadvertence, or simple inattention.  The RTC did not recognize the
89
right of the petitioners to recover the loss of earning capacity of Rommel. It should have,
for doing so would have conformed to jurisprudence whereby the Court has
unhesitatingly allowed such recovery in respect of children, students and other non-
working or still unemployed victims. The legal basis for doing so is Article 2206 (l) of
the Civil Code, which stipulates that the defendant "shall be liable for the loss of the
earning capacity of the deceased, and the indemnity shall be paid to the heirs of the
latter; such indemnity shall in every case be assessed and awarded by the court, unless
the deceased on account of permanent physical disability not caused by the defendant,
had no earning capacity at the time of his death."
Indeed, damages for loss of earning capacity may be awarded to the heirs of a deceased
non-working victim simply because earning capacity, not necessarily actual earning, may
be lost.
In Metro Manila Transit Corporation v. Court of Appeals,  damages for loss of earning
90
capacity were granted to the heirs of a third-year high school student of the University of
the Philippines Integrated School who had been killed when she was hit and run over by
the petitioner's passenger bus as she crossed Katipunan Avenue in Quezon City. The
Court justified the grant in this wise:
Compensation of this nature is awarded not for loss of earnings but for loss of capacity to
earn money. Evidence must be presented that the victim, if not yet employed at the time
of death, was reasonably certain to complete training for a specific profession. In People
v. Teehankee, no award of compensation for loss of earning capacity was granted to the
heirs of a college freshman because there was no sufficient evidence on record to show
that the victim would eventually become a professional pilot. But compensation should
be allowed for loss of earning capacity resulting from the death of a minor who has not
yet commenced employment or training for a specific profession if sufficient evidence is
presented to establish the amount thereor.  (bold underscoring supplied for emphasis)
91
In People v. Sanchez,  damages for loss of earning capacity was also allowed to the
92
heirs of the victims of rape with homicide despite the lack of sufficient evidence to
establish what they would have earned had they not been killed. The Court rationalized
its judgment with the following observations:
Both Sarmenta and Gomez were senior agriculture students at UPLB, the country's
leading educational institution in agriculture.  As reasonably assumed by the trial court,
1âwphi1
both victims would have graduated in due course. Undeniably, their untimely death
deprived them of their future time and earning capacity. For these deprivation, their heirs
are entitled to compensation. xxxx. However, considering that Sarmenta and Gomez
would have graduated in due time from a reputable university, it would not be
unreasonable to assume that in 1993 they would have earned more than the minimum
wage. All factors considered, the Court believes that it is fair and reasonable to fix the
monthly income that the two would have earned in 1993 at ₱8,000.000 per month (or
₱96,000.00/year) and their deductible living and other incidental expenses at ₱3,000.00
per month (or ₱36,000.00/year).  (bold underscoring supplied for emphasis)
93
In Perena v. Zarate,  the Court fixed damages for loss of earning capacity to be paid to
94
the heirs of the 15-year-old high school student of Don Bosco Technical Institute killed
when a moving train hit the school van ferrying him to school while it was traversing the
railroad tracks. The RTC and the CA had awarded damages for loss of earning capacity
computed on the basis of the minimum wage in effect at the time of his death. Upholding
said findings, the Court opined:
x x x, the fact that Aaron was then without a history of earnings should not be taken
against his parents and in favor of the defendants whose negligence not only cost Aaron
his life and his right to work and earn money, but also deprived his parents of their right
to his presence and his services as well. x x x. Accordingly, we emphatically hold in favor
of the indemnification for Aaron's loss of earning capacity despite him having been
unemployed, because compensation of this nature is awarded not for loss of time or
earnings but for loss of the deceased's power or ability to earn money.
The petitioners sufficiently showed that Rommel was, at the time of his untimely but
much lamented death, able-bodied, in good physical and mental state, and a student in
good standing.  It should be reasonable to assume that Rommel would have finished his
95
schooling and would turn out to be a useful and productive person had he not died.
Under the foregoing jurisprudence, the petitioners should be compensated for losing
Rommel's power or ability to earn. The basis for the computation of earning capacity is
not what he would have become or what he would have wanted to be if not for his
untimely death, but the minimum wage in effect at the time of his death. The formula for
this purpose is:
Net Earning Capacity = Life Expectancy x [Gross Annual Income less Necessary Living
Expenses ] 96
Life expectancy is equivalent to 2/3 multiplied by the difference of 80 and the age of the
deceased. Since Rommel was 18 years of age at the time of his death, his life
expectancy was 41 years. His projected gross annual income, computed based on the
minimum wage for workers in the non-agricultural sector in effect at the time of his
death,  then fixed at ₱l4.00/day, is ₱5,535.83. Allowing for necessary living expenses of
97
50% of his projected gross annual income, his total net earning capacity is ₱l13,484.52.
Article 2211 of the Civil Code expressly provides that interest, as a part of damages, may
be awarded in crimes and quasi-delicts at the discretion of the court. The rate of interest
provided under Article 2209 of the Civil Code is 6% per annum in the absence of
stipulation to the contrary. The legal interest rate of 6% per annum is to be imposed
upon the total amounts herein awarded from the time of the judgment of the RTC on May
10, 1991 until finality of judgment.  Moreover, pursuant to Article 2212  of the Civil
98 99
Code, the legal interest rate of 6o/o per annum is to be further imposed on the interest
earned up to the time this judgment of the Court becomes final and executory until its full
satisfaction.
100
Article 2208 of the Civil Code expressly allows the recovery of attorney's fees and
expenses of litigation when exemplary damages have been awarded.  Thus, we uphold
1âwphi1
the RTC's allocation of attorney's fees in favor of the petitioners equivalent to 10% of the
total amount to be recovered, inclusive of the damages for loss of earning capacity and
interests, which we consider to be reasonable under the circumstances.
WHEREFORE, the Court PARTLY AFFIRMS the decision promulgated on March 10,
2004 to the extent that it absolved COSMOS BOTTLING COMPANY, INC. from
liability; REVERSES and SETS ASIDE the decision as to INTERGAMES,
INC., and REINSTATES as to it the judgment rendered on May 10, 1991 by the Regional
Trial Court, Branch 83, in Quezon City subject to
the MODIFICATIONS that INTERGAMES, INC. is ORDERED TO PAY to the petitioners,
in addition to the aw3:rds thereby allowed: (a) the sum of ₱l13,484.52 as damages for
the loss of Rommel Abrogar's earning capacity; (b) interest of 6% per annum on the
actual damages, moral damages, exemplary damages and loss of earning capacity
reckoned from May 10, 1991 until full payment; (c) compounded interest of 6% per
annum from the finality of this decision until full payment; and (d) costs of suit.

SO ORDERED
G.R. No. L-15688             November 19, 1921
REMIGIO RODRIGUEZ, ET AL., plaintiffs-appellees,
vs.
THE MANILA RAILROAD COMPANY, defendant-appellant.
Orense & Vera for appellant.
Domingo Imperial for appellees.
STREET, J.:
This action was instituted jointly by Remigio Rodrigueza and three others in the Court of
First Instance of the Province of Albay to recover a sum of money of the Manila Railroad
Company as damages resulting from a fire kindled by sparks from a locomotive engine
under the circumstances set out below. Upon hearing the cause upon the complaint,
answer and an agreed statement of facts, the trial judge rendered judgment against the
defendant company in favor of the plaintiffs and awarded to them the following sums
respectively as damages, to wit, (1) to Remigio Rodrigueza, P3,000; (2) to Domingo
Gonzaga, P400; (3) to Cristina Luna, P300; and (4) to Perfecta Losantas, P150; all with
lawful interest from March 21, 1919. From this judgment the defendant appealed.
The facts as appearing from the agreed statement, in relation with the complaint, are to
the effect that the defendant Railroad Company operates a line through the district of
Daraga in the municipality of Albay; that on January 29, 1918, as one of its trains passed
over said line, a great quantity of sparks were emitted from the smokestack of the
locomotive, and fire was thereby communicated to four houses nearby belonging to the
four plaintiffs respectively, and the same were entirely consumed. All of these houses
were of light construction with the exception of the house of Remigio Rodrigueza, which
was of strong materials, though the roof was covered with nipa and cogon. The fire
occurred immediately after the passage of the train, and a strong wind was blowing at
the time. It does not appear either in the complaint or in the agreed statement whose
house caught fire first, though it is stated in the appellant's brief that the fire was first
communicated to the house of Remigio Rodrigueza, from whence it spread to the others.
In the fourth paragraph of the complaint — which is admitted to be true — it is alleged
that the defendant Railroad Company was conspicuously negligent in relation to the
origin of said fire, in the following respects, namely, first, in failing to exercise proper
supervision over the employees in charge of the locomotive; secondly, in allowing the
locomotive which emitted these sparks to be operated without having the smokestack
protected by some device for arresting sparks; thirdly, in using in its locomotive upon this
occasion Bataan coal, a fuel of known inferior quality which, upon combustion, produces
sparks in great quantity.
The sole ground upon which the defense is rested is that the house of Remigio
Rodrigueza stood partly within the limits of the land owned by the defendant company,
though exactly how far away from the company's track does not appear. It further
appears that, after the railroad track was laid, the company notified Rodrigueza to get his
house off the land of the company and to remove it from its exposed position.
Rodrigueza did not comply with this suggestion, though he promised to put an iron roof
on his house, which he never did. Instead, he changed the materials of the main roof to
nipa, leaving the kitchen and media-aguas covered with cogon. Upon this fact it is
contended for the defense that there was contributory negligence on the part of Remigio
Rodrigueza in having his house partly on the premises of the Railroad Company, and
that for this reason the company is not liable. This position is in our opinion untenable for
the reasons which we shall proceed to state.
In the first place, it will be noted that the fact suggested as constituting a defense to this
action could not in any view of the case operate as a bar to recovery by the three
plaintiffs other than Remigio Rodrigueza, even assuming that the fire was first
communicated to his house; for said three plaintiffs are in nowise implicated in the act
which supposedly constitutes the defense. In this connection it will be observed that the
right of action of each of these plaintiffs is totally distinct from that of his co-plaintiff, so
much so that each might have sued separately, and the defendant if it had seen fit to do
so, might in this case have demurred successfully to the complaint for misjoinder of
parties plaintiff. The fact that the several rights of action of the different plaintiffs arose
simultaneously out of one act of the defendant is not sufficient of itself to require, or even
permit, the joinder of such parties as coplaintiffs in a single action (30 Cyc., 114) if
objection had been made thereto. Domingo Gonzaga, Cristina Luna, and Perfecta
Losantas are therefore entitled to recover upon the admitted fact that this fire originated
in the negligent acts of the defendant; and the circumstance that the fire may have been
communicated to their houses through the house of Remegio Rodrigueza, instead of
having been directly communicated from the locomotive, is immaterial. (See 38 Am.
Dec., 64, 77; 1 11 R. C. L., 968-971; Kansas City, etc. Railroad Co. vs. Blaker, 64 L. R. A.,
81 Pennsylvania Railroad Co. vs. Hope, 80 Pa. St., 373; 21 Am. Rep. 100.)
With respect to the case of Remegio Rodrigueza it is to be inferred that his house stood
upon this ground before the Railroad Company laid its line over this course; and at any
rate there is no proof that this plaintiff had unlawfully intruded upon the railroad's property
in the act of building his house. What really occurred undoubtedly is that the company,
upon making this extension, had acquired the land only, leaving the owner of the house
free to remove it. Hence he cannot be considered to have been a trespasser in the
beginning. Rather, he was there at the sufferance of the defendant company, and so
long as his house remained in this exposed position, he undoubtedly assumed the risk of
any loss that might have resulted from fires occasioned by the defendant's locomotives if
operated and managed with ordinary care. But he cannot be held to have assumed the
risk of any damage that might result from the unlawful negligence acts of the defendant.
Nobody is bound to anticipate and defend himself against the possible negligence of
another. Rather he has a right to assume that the other will use the care of the ordinary
prudent man. (Philadelphia and Reading Railroad Co. vs. Hendrickson, 80 Pa. St., 182;
21 Am. Rep., 97.)

In the situation now under consideration the proximate and only cause of the damage
that occurred was the negligent act of the defendant in causing this fire. The
circumstance that Remigio Rodrigueza's house was partly on the property of the
defendant company and therefore in dangerous proximity to passing locomotives was an
antecedent condition that may in fact have made the disaster possible, but that
circumstance cannot be imputed to him as contributory negligence destructive of his right
of action, because, first, that condition was not created by himself; secondly, because his
house remained on this ground by the toleration, and therefore with the consent of the
Railroad Company; and thirdly, because even supposing the house to be improperly
there, this fact would not justify the defendant in negligently destroying it. (Grand Trunk
Railway of Canada vs. Richardson, 91 U. S., 454; 23 L. ed., 356; Norfolk etc. Ry.
Co. vs. Perrow, 101 Va., 345, 350.) lawphil.net

The circumstance that the defendant company, upon planting its line near Remigio
Rodrigueza's house, had requested or directed him to remove it, did not convert his
occupancy into a trespass, or impose upon him any additional responsibility over and
above what the law itself imposes in such situation. In this connection it must be
remembered that the company could at any time have removed said house in the
exercise of the power of eminent domain, but it elected not to do so.

Questions similar to that now before us have been under the consideration of American
courts many times, and their decisions are found to be uniformly favorable to recovery
where the property destroyed has been placed in whole or in part on the right of way of
the railroad company with its express or implied consent. (L. R. Martin Timber
Co. vs. Great Northern Railway Co., 123 Minn., 423; Ann. Cas., 1915A, p. 496, note;
Burroughs vs. Housatonic R.R. Co., 15 Conn., 124; 38 Am. Dec., 64; 74; Southern Ry.
Co. vs. Patterson, 105 Va. 6; 8 Ann. Cas., 44.) And the case for the plaintiff is apparently
stronger where the company constructs its line in proximity to a house already built and
fails to condemn it and remove it from its right of way.

From what has been said it is apparent that the judgment appealed from is in all respect
in conformity with the law, and the same is accordingly affirmed, with costs. So ordered
G.R. No. L-47851 October 3, 1986
JUAN F. NAKPIL & SONS, and JUAN F. NAKPIL, petitioners,
vs.
THE COURT OF APPEALS, UNITED CONSTRUCTION COMPANY, INC., JUAN J.
CARLOS, and the PHILIPPINE BAR ASSOCIATION, respondents.
G.R. No. L-47863 October 3, 1986
THE UNITED CONSTRUCTION CO., INC., petitioner,
vs.
COURT OF APPEALS, ET AL., respondents.
G.R. No. L-47896 October 3, 1986
PHILIPPINE BAR ASSOCIATION, ET AL., petitioners,
vs.
COURT OF APPEALS, ET AL., respondents.
PARAS, J.:
These are petitions for review on certiorari of the November 28, 1977 decision of
the Court of Appeals in CA-G.R. No. 51771-R modifying the decision of the Court of
First Instance of Manila, Branch V, in Civil Case No. 74958 dated September 21,
1971 as modified by the Order of the lower court dated December 8, 1971. The
Court of Appeals in modifying the decision of the lower court included an award of
an additional amount of P200,000.00 to the Philippine Bar Association to be paid
jointly and severally by the defendant United Construction Co. and by the third-
party defendants Juan F. Nakpil and Sons and Juan F. Nakpil.
The dispositive portion of the modified decision of the lower court reads:
WHEREFORE, judgment is hereby rendered:
(a) Ordering defendant United Construction Co., Inc. and third-party
defendants (except Roman Ozaeta) to pay the plaintiff, jointly and
severally, the sum of P989,335.68 with interest at the legal rate from
November 29, 1968, the date of the filing of the complaint until full
payment;
(b) Dismissing the complaint with respect to defendant Juan J.
Carlos;
(c) Dismissing the third-party complaint;
(d) Dismissing the defendant's and third-party defendants'
counterclaims for lack of merit;
(e) Ordering defendant United Construction Co., Inc. and third-party
defendants (except Roman Ozaeta) to pay the costs in equal shares.
SO ORDERED. (Record on Appeal p. 521; Rollo, L- 47851, p. 169).
The dispositive portion of the decision of the Court of Appeals reads:
WHEREFORE, the judgment appealed from is modified to include an
award of P200,000.00 in favor of plaintiff-appellant Philippine Bar
Association, with interest at the legal rate from November 29, 1968
until full payment to be paid jointly and severally by defendant
United Construction Co., Inc. and third party defendants (except
Roman Ozaeta). In all other respects, the judgment dated September
21, 1971 as modified in the December 8, 1971 Order of the lower
court is hereby affirmed with COSTS to be paid by the defendant
and third party defendant (except Roman Ozaeta) in equal shares.
SO ORDERED.
Petitioners Juan F. Nakpil & Sons in L-47851 and United Construction Co., Inc. and
Juan J. Carlos in L-47863 seek the reversal of the decision of the Court of Appeals,
among other things, for exoneration from liability while petitioner Philippine Bar
Association in L-47896 seeks the modification of aforesaid decision to obtain an
award of P1,830,000.00 for the loss of the PBA building plus four (4) times such
amount as damages resulting in increased cost of the building, P100,000.00 as
exemplary damages; and P100,000.00 as attorney's fees.
These petitions arising from the same case filed in the Court of First Instance of
Manila were consolidated by this Court in the resolution of May 10, 1978 requiring
the respective respondents to comment. (Rollo, L-47851, p. 172).
The facts as found by the lower court (Decision, C.C. No. 74958; Record on
Appeal, pp. 269-348; pp. 520-521; Rollo, L-47851, p. 169) and affirmed by the Court
of Appeals are as follows:
The plaintiff, Philippine Bar Association, a civic-non-profit association,
incorporated under the Corporation Law, decided to construct an office building
on its 840 square meters lot located at the comer of Aduana and Arzobispo
Streets, Intramuros, Manila. The construction was undertaken by the United
Construction, Inc. on an "administration" basis, on the suggestion of Juan J.
Carlos, the president and general manager of said corporation. The proposal was
approved by plaintiff's board of directors and signed by its president Roman
Ozaeta, a third-party defendant in this case. The plans and specifications for the
building were prepared by the other third-party defendants Juan F. Nakpil & Sons.
The building was completed in June, 1966.
In the early morning of August 2, 1968 an unusually strong earthquake hit Manila
and its environs and the building in question sustained major damage. The front
columns of the building buckled, causing the building to tilt forward dangerously.
The tenants vacated the building in view of its precarious condition. As a
temporary remedial measure, the building was shored up by United Construction,
Inc. at the cost of P13,661.28.
On November 29, 1968, the plaintiff commenced this action for the recovery of
damages arising from the partial collapse of the building against United
Construction, Inc. and its President and General Manager Juan J. Carlos as
defendants. Plaintiff alleges that the collapse of the building was accused by
defects in the construction, the failure of the contractors to follow plans and
specifications and violations by the defendants of the terms of the contract.
Defendants in turn filed a third-party complaint against the architects who
prepared the plans and specifications, alleging in essence that the collapse of the
building was due to the defects in the said plans and specifications. Roman
Ozaeta, the then president of the plaintiff Bar Association was included as a third-
party defendant for damages for having included Juan J. Carlos, President of the
United Construction Co., Inc. as party defendant.
On March 3, 1969, the plaintiff and third-party defendants Juan F. Nakpil & Sons
and Juan F. Nakpil presented a written stipulation which reads:
1. That in relation to defendants' answer with counterclaims and
third- party complaints and the third-party defendants Nakpil &
Sons' answer thereto, the plaintiff need not amend its complaint by
including the said Juan F. Nakpil & Sons and Juan F. Nakpil
personally as parties defendant.
2. That in the event (unexpected by the undersigned) that the Court
should find after the trial that the above-named defendants Juan J.
Carlos and United Construction Co., Inc. are free from any blame
and liability for the collapse of the PBA Building, and should further
find that the collapse of said building was due to defects and/or
inadequacy of the plans, designs, and specifications p by the third-
party defendants, or in the event that the Court may find Juan F.
Nakpil and Sons and/or Juan F. Nakpil contributorily negligent or in
any way jointly and solidarily liable with the defendants, judgment
may be rendered in whole or in part. as the case may be, against
Juan F. Nakpil & Sons and/or Juan F. Nakpil in favor of the plaintiff
to all intents and purposes as if plaintiff's complaint has been duly
amended by including the said Juan F. Nakpil & Sons and Juan F.
Nakpil as parties defendant and by alleging causes of action against
them including, among others, the defects or inadequacy of the
plans, designs, and specifications prepared by them and/or failure
in the performance of their contract with plaintiff.
3. Both parties hereby jointly petition this Honorable Court to
approve this stipulation. (Record on Appeal, pp. 274-275; Rollo, L-
47851,p.169).
Upon the issues being joined, a pre-trial was conducted on March 7, 1969, during
which among others, the parties agreed to refer the technical issues involved in
the case to a Commissioner. Mr. Andres O. Hizon, who was ultimately appointed
by the trial court, assumed his office as Commissioner, charged with the duty to
try the following issues:
1. Whether the damage sustained by the PBA building during the
August 2, 1968 earthquake had been caused, directly or indirectly,
by:
(a) The inadequacies or defects in the plans and specifications
prepared by third-party defendants;
(b) The deviations, if any, made by the defendants from said plans
and specifications and how said deviations contributed to the
damage sustained;
 (c) The alleged failure of defendants to observe the requisite quality
of materials and workmanship in the construction of the building;
(d) The alleged failure to exercise the requisite degree of
supervision expected of the architect, the contractor and/or the
owner of the building;
(e) An act of God or a fortuitous event; and
(f) Any other cause not herein above specified.
2. If the cause of the damage suffered by the building arose from a
combination of the above-enumerated factors, the degree or
proportion in which each individual factor contributed to the
damage sustained;
3. Whether the building is now a total loss and should be completely
demolished or whether it may still be repaired and restored to a
tenantable condition. In the latter case, the determination of the cost
of such restoration or repair, and the value of any remaining
construction, such as the foundation, which may still be utilized or
availed of (Record on Appeal, pp. 275-276; Rollo, L-47851, p. 169).
Thus, the issues of this case were divided into technical issues and non-technical
issues. As aforestated the technical issues were referred to the Commissioner.
The non-technical issues were tried by the Court.
Meanwhile, plaintiff moved twice for the demolition of the building on the ground
that it may topple down in case of a strong earthquake. The motions were opposed
by the defendants and the matter was referred to the Commissioner. Finally, on
April 30, 1979 the building was authorized to be demolished at the expense of the
plaintiff, but not another earthquake of high intensity on April 7, 1970 followed by
other strong earthquakes on April 9, and 12, 1970, caused further damage to the
property. The actual demolition was undertaken by the buyer of the damaged
building. (Record on Appeal, pp. 278-280; Ibid.)
After the protracted hearings, the Commissioner eventually submitted his report
on September 25, 1970 with the findings that while the damage sustained by the
PBA building was caused directly by the August 2, 1968 earthquake whose
magnitude was estimated at 7.3 they were also caused by the defects in the plans
and specifications prepared by the third-party defendants' architects, deviations
from said plans and specifications by the defendant contractors and failure of the
latter to observe the requisite workmanship in the construction of the building and
of the contractors, architects and even the owners to exercise the requisite degree
of supervision in the construction of subject building.
All the parties registered their objections to aforesaid findings which in turn were
answered by the Commissioner.
The trial court agreed with the findings of the Commissioner except as to the
holding that the owner is charged with full nine supervision of the construction.
The Court sees no legal or contractual basis for such conclusion. (Record on
Appeal, pp. 309-328; Ibid).
Thus, on September 21, 1971, the lower court rendered the assailed decision
which was modified by the Intermediate Appellate Court on November 28, 1977.
All the parties herein appealed from the decision of the Intermediate Appellate
Court. Hence, these petitions.
On May 11, 1978, the United Architects of the Philippines, the Association of Civil
Engineers, and the Philippine Institute of Architects filed with the Court a motion
to intervene as amicus curiae. They proposed to present a position paper on the
liability of architects when a building collapses and to submit likewise a critical
analysis with computations on the divergent views on the design and plans as
submitted by the experts procured by the parties. The motion having been
granted, the amicus curiae were granted a period of 60 days within which to
submit their position.
After the parties had all filed their comments, We gave due course to the petitions
in Our Resolution of July 21, 1978.
The position papers of the amicus curiae (submitted on November 24, 1978) were
duly noted.
The amicus curiae gave the opinion that the plans and specifications of the
Nakpils were not defective. But the Commissioner, when asked by Us to comment,
reiterated his conclusion that the defects in the plans and specifications indeed
existed.
Using the same authorities availed of by the amicus curiae such as the Manila
Code (Ord. No. 4131) and the 1966 Asep Code, the Commissioner added that even
if it can be proved that the defects in the construction alone (and not in the plans
and design) caused the damage to the building, still the deficiency in the original
design and jack of specific provisions against torsion in the original plans and the
overload on the ground floor columns (found by an the experts including the
original designer) certainly contributed to the damage which occurred. (Ibid, p.
174).
In their respective briefs petitioners, among others, raised the following
assignments of errors: Philippine Bar Association claimed that the measure of
damages should not be limited to P1,100,000.00 as estimated cost of repairs or to
the period of six (6) months for loss of rentals while United Construction Co., Inc.
and the Nakpils claimed that it was an act of God that caused the failure of the
building which should exempt them from responsibility and not the defective
construction, poor workmanship, deviations from plans and specifications and
other imperfections in the case of United Construction Co., Inc. or the deficiencies
in the design, plans and specifications prepared by petitioners in the case of the
Nakpils. Both UCCI and the Nakpils object to the payment of the additional amount
of P200,000.00 imposed by the Court of Appeals. UCCI also claimed that it should
be reimbursed the expenses of shoring the building in the amount of P13,661.28
while the Nakpils opposed the payment of damages jointly and solidarity with
UCCI.
The pivotal issue in this case is whether or not an act of God-an unusually strong
earthquake-which caused the failure of the building, exempts from liability, parties
who are otherwise liable because of their negligence.
The applicable law governing the rights and liabilities of the parties herein is
Article 1723 of the New Civil Code, which provides:
Art. 1723. The engineer or architect who drew up the plans and
specifications for a building is liable for damages if within fifteen
years from the completion of the structure the same should collapse
by reason of a defect in those plans and specifications, or due to
the defects in the ground. The contractor is likewise responsible for
the damage if the edifice fags within the same period on account of
defects in the construction or the use of materials of inferior quality
furnished by him, or due to any violation of the terms of the
contract. If the engineer or architect supervises the construction, he
shall be solidarily liable with the contractor.
Acceptance of the building, after completion, does not imply waiver
of any of the causes of action by reason of any defect mentioned in
the preceding paragraph.
The action must be brought within ten years following the collapse
of the building.
On the other hand, the general rule is that no person shall be responsible for
events which could not be foreseen or which though foreseen, were inevitable
(Article 1174, New Civil Code).
An act of God has been defined as an accident, due directly and exclusively to
natural causes without human intervention, which by no amount of foresight,
pains or care, reasonably to have been expected, could have been prevented. (1
Corpus Juris 1174).
There is no dispute that the earthquake of August 2, 1968 is a fortuitous event or
an act of God.
To exempt the obligor from liability under Article 1174 of the Civil Code, for a
breach of an obligation due to an "act of God," the following must concur: (a) the
cause of the breach of the obligation must be independent of the will of the debtor;
(b) the event must be either unforseeable or unavoidable; (c) the event must be
such as to render it impossible for the debtor to fulfill his obligation in a normal
manner; and (d) the debtor must be free from any participation in, or aggravation
of the injury to the creditor. (Vasquez v. Court of Appeals, 138 SCRA 553; Estrada
v. Consolacion, 71 SCRA 423; Austria v. Court of Appeals, 39 SCRA 527; Republic
of the Phil. v. Luzon Stevedoring Corp., 21 SCRA 279; Lasam v. Smith, 45 Phil.
657).
Thus, if upon the happening of a fortuitous event or an act of God, there concurs a
corresponding fraud, negligence, delay or violation or contravention in any
manner of the tenor of the obligation as provided for in Article 1170 of the Civil
Code, which results in loss or damage, the obligor cannot escape liability.
The principle embodied in the act of God doctrine strictly requires that the act
must be one occasioned exclusively by the violence of nature and all human
agencies are to be excluded from creating or entering into the cause of the
mischief. When the effect, the cause of which is to be considered, is found to be in
part the result of the participation of man, whether it be from active intervention or
neglect, or failure to act, the whole occurrence is thereby humanized, as it were,
and removed from the rules applicable to the acts of God. (1 Corpus Juris, pp.
1174-1175).
Thus it has been held that when the negligence of a person concurs with an act of
God in producing a loss, such person is not exempt from liability by showing that
the immediate cause of the damage was the act of God. To be exempt from liability
for loss because of an act of God, he must be free from any previous negligence
or misconduct by which that loss or damage may have been occasioned. (Fish &
Elective Co. v. Phil. Motors, 55 Phil. 129; Tucker v. Milan, 49 O.G. 4379; Limpangco
& Sons v. Yangco Steamship Co., 34 Phil. 594, 604; Lasam v. Smith, 45 Phil. 657).
The negligence of the defendant and the third-party defendants petitioners was
established beyond dispute both in the lower court and in the Intermediate
Appellate Court. Defendant United Construction Co., Inc. was found to have made
substantial deviations from the plans and specifications. and to have failed to
observe the requisite workmanship in the construction as well as to exercise the
requisite degree of supervision; while the third-party defendants were found to
have inadequacies or defects in the plans and specifications prepared by them. As
correctly assessed by both courts, the defects in the construction and in the plans
and specifications were the proximate causes that rendered the PBA building
unable to withstand the earthquake of August 2, 1968. For this reason the
defendant and third-party defendants cannot claim exemption from liability.
(Decision, Court of Appeals, pp. 30-31).
It is well settled that the findings of facts of the Court of Appeals are conclusive on
the parties and on this court (cases cited in Tolentino vs. de Jesus, 56 SCRA 67;
Cesar vs. Sandiganbayan, January 17, 1985, 134 SCRA 105, 121), unless (1) the
conclusion is a finding grounded entirely on speculation, surmise and
conjectures; (2) the inference made is manifestly mistaken; (3) there is grave
abuse of discretion; (4) the judgment is based on misapprehension of facts; (5) the
findings of fact are conflicting , (6) the Court of Appeals went beyond the issues of
the case and its findings are contrary to the admissions of both appellant and
appellees (Ramos vs. Pepsi-Cola Bottling Co., February 8, 1967, 19 SCRA 289, 291-
292; Roque vs. Buan, Oct. 31, 1967, 21 SCRA 648, 651); (7) the findings of facts of
the Court of Appeals are contrary to those of the trial court; (8) said findings of
facts are conclusions without citation of specific evidence on which they are
based; (9) the facts set forth in the petition as well as in the petitioner's main and
reply briefs are not disputed by the respondents (Garcia vs. CA, June 30, 1970, 33
SCRA 622; Alsua-Bett vs. Court of Appeals, July 30, 1979, 92 SCRA 322, 366); (10)
the finding of fact of the Court of Appeals is premised on the supposed absence of
evidence and is contradicted by evidence on record (Salazar vs. Gutierrez, May 29,
1970, 33 SCRA 243, 247; Cited in G.R. No. 66497-98, Sacay v. Sandiganbayan, July
10, 1986).
It is evident that the case at bar does not fall under any of the exceptions above-
mentioned. On the contrary, the records show that the lower court spared no effort
in arriving at the correct appreciation of facts by the referral of technical issues to
a Commissioner chosen by the parties whose findings and conclusions remained
convincingly unrebutted by the intervenors/amicus curiae who were allowed to
intervene in the Supreme Court.
In any event, the relevant and logical observations of the trial court as affirmed by
the Court of Appeals that "while it is not possible to state with certainty that the
building would not have collapsed were those defects not present, the fact
remains that several buildings in the same area withstood the earthquake to which
the building of the plaintiff was similarly subjected," cannot be ignored.
The next issue to be resolved is the amount of damages to be awarded to the PBA
for the partial collapse (and eventual complete collapse) of its building.
The Court of Appeals affirmed the finding of the trial court based on the report of
the Commissioner that the total amount required to repair the PBA building and to
restore it to tenantable condition was P900,000.00 inasmuch as it was not initially
a total loss. However, while the trial court awarded the PBA said amount as
damages, plus unrealized rental income for one-half year, the Court of Appeals
modified the amount by awarding in favor of PBA an additional sum of P200,000.00
representing the damage suffered by the PBA building as a result of another
earthquake that occurred on April 7, 1970 (L-47896, Vol. I, p. 92).
The PBA in its brief insists that the proper award should be P1,830,000.00
representing the total value of the building (L-47896, PBA's No. 1 Assignment of
Error, p. 19), while both the NAKPILS and UNITED question the additional award of
P200,000.00 in favor of the PBA (L- 47851, NAKPIL's Brief as Petitioner, p. 6,
UNITED's Brief as Petitioner, p. 25). The PBA further urges that the unrealized
rental income awarded to it should not be limited to a period of one-half year but
should be computed on a continuing basis at the rate of P178,671.76 a year until
the judgment for the principal amount shall have been satisfied L- 47896, PBA's
No. 11 Assignment of Errors, p. 19).
The collapse of the PBA building as a result of the August 2, 1968 earthquake was
only partial and it is undisputed that the building could then still be repaired and
restored to its tenantable condition. The PBA, however, in view of its lack of
needed funding, was unable, thru no fault of its own, to have the building repaired.
UNITED, on the other hand, spent P13,661.28 to shore up the building after the
August 2, 1968 earthquake (L-47896, CA Decision, p. 46). Because of the
earthquake on April 7, 1970, the trial court after the needed consultations,
authorized the total demolition of the building (L-47896, Vol. 1, pp. 53-54).
There should be no question that the NAKPILS and UNITED are liable for the
damage resulting from the partial and eventual collapse of the PBA building as a
result of the earthquakes.
We quote with approval the following from the erudite decision penned by Justice
Hugo E. Gutierrez (now an Associate Justice of the Supreme Court) while still an
Associate Justice of the Court of Appeals:
There is no question that an earthquake and other forces of nature
such as cyclones, drought, floods, lightning, and perils of the sea
are acts of God. It does not necessarily follow, however, that
specific losses and suffering resulting from the occurrence of these
natural force are also acts of God. We are not convinced on the
basis of the evidence on record that from the thousands of
structures in Manila, God singled out the blameless PBA building in
Intramuros and around six or seven other buildings in various parts
of the city for collapse or severe damage and that God alone was
responsible for the damages and losses thus suffered.
The record is replete with evidence of defects and deficiencies in
the designs and plans, defective construction, poor workmanship,
deviation from plans and specifications and other imperfections.
These deficiencies are attributable to negligent men and not to a
perfect God.
The act-of-God arguments of the defendants- appellants and third
party defendants-appellants presented in their briefs are premised
on legal generalizations or speculations and on theological fatalism
both of which ignore the plain facts. The lengthy discussion of
United on ordinary earthquakes and unusually strong earthquakes
and on ordinary fortuitous events and extraordinary fortuitous
events leads to its argument that the August 2, 1968 earthquake was
of such an overwhelming and destructive character that by its own
force and independent of the particular negligence alleged, the
injury would have been produced. If we follow this line of
speculative reasoning, we will be forced to conclude that under
such a situation scores of buildings in the vicinity and in other parts
of Manila would have toppled down. Following the same line of
reasoning, Nakpil and Sons alleges that the designs were adequate
in accordance with pre-August 2, 1968 knowledge and appear
inadequate only in the light of engineering information acquired
after the earthquake. If this were so, hundreds of ancient buildings
which survived the earthquake better than the two-year old PBA
building must have been designed and constructed by architects
and contractors whose knowledge and foresight were unexplainably
auspicious and prophetic. Fortunately, the facts on record allow a
more down to earth explanation of the collapse. The failure of the
PBA building, as a unique and distinct construction with no
reference or comparison to other buildings, to weather the severe
earthquake forces was traced to design deficiencies and defective
construction, factors which are neither mysterious nor esoteric. The
theological allusion of appellant United that God acts in mysterious
ways His wonders to perform impresses us to be inappropriate. The
evidence reveals defects and deficiencies in design and
construction. There is no mystery about these acts of negligence.
The collapse of the PBA building was no wonder performed by God.
It was a result of the imperfections in the work of the architects and
the people in the construction company. More relevant to our mind
is the lesson from the parable of the wise man in the Sermon on the
Mount "which built his house upon a rock; and the rain descended
and the floods came and the winds blew and beat upon that house;
and it fen not; for it was founded upon a rock" and of the "foolish
upon the sand. And the rain descended and man which built his
house the floods came, and the winds blew, and beat upon that
house; and it fell and great was the fall of it. (St. Matthew 7: 24-27)."
The requirement that a building should withstand rains, floods,
winds, earthquakes, and natural forces is precisely the reason why
we have professional experts like architects, and engineers.
Designs and constructions vary under varying circumstances and
conditions but the requirement to design and build well does not
change.
The findings of the lower Court on the cause of the collapse are
more rational and accurate. Instead of laying the blame solely on the
motions and forces generated by the earthquake, it also examined
the ability of the PBA building, as designed and constructed, to
withstand and successfully weather those forces.
The evidence sufficiently supports a conclusion that the negligence
and fault of both United and Nakpil and Sons, not a mysterious act
of an inscrutable God, were responsible for the damages. The
Report of the Commissioner, Plaintiff's Objections to the Report,
Third Party Defendants' Objections to the Report, Defendants'
Objections to the Report, Commissioner's Answer to the various
Objections, Plaintiffs' Reply to the Commissioner's Answer,
Defendants' Reply to the Commissioner's Answer, Counter-Reply to
Defendants' Reply, and Third-Party Defendants' Reply to the
Commissioner's Report not to mention the exhibits and the
testimonies show that the main arguments raised on appeal were
already raised during the trial and fully considered by the lower
Court. A reiteration of these same arguments on appeal fails to
convince us that we should reverse or disturb the lower Court's
factual findings and its conclusions drawn from the facts, among
them:
The Commissioner also found merit in the allegations of the
defendants as to the physical evidence before and after the
earthquake showing the inadequacy of design, to wit:
Physical evidence before the earthquake providing (sic) inadequacy
of design;
1. inadequate design was the cause of the failure of the building.
2. Sun-baffles on the two sides and in front of the building;
a. Increase the inertia forces that move the building laterally toward
the Manila Fire Department.
b. Create another stiffness imbalance.
3. The embedded 4" diameter cast iron down spout on all exterior
columns reduces the cross-sectional area of each of the columns
and the strength thereof.
4. Two front corners, A7 and D7 columns were very much less
reinforced.
Physical Evidence After the Earthquake, Proving Inadequacy of
design;
1. Column A7 suffered the severest fracture and maximum sagging.
Also D7.
2. There are more damages in the front part of the building than
towards the rear, not only in columns but also in slabs.
3. Building leaned and sagged more on the front part of the building.
4. Floors showed maximum sagging on the sides and toward the
front corner parts of the building.
5. There was a lateral displacement of the building of about 8",
Maximum sagging occurs at the column A7 where the floor is lower
by 80 cm. than the highest slab level.
6. Slab at the corner column D7 sagged by 38 cm.
The Commissioner concluded that there were deficiencies or
defects in the design, plans and specifications of the PBA building
which involved appreciable risks with respect to the accidental
forces which may result from earthquake shocks. He conceded,
however, that the fact that those deficiencies or defects may have
arisen from an obsolete or not too conservative code or even a code
that does not require a design for earthquake forces mitigates in a
large measure the responsibility or liability of the architect and
engineer designer.
The Third-party defendants, who are the most concerned with this
portion of the Commissioner's report, voiced opposition to the same
on the grounds that (a) the finding is based on a basic erroneous
conception as to the design concept of the building, to wit, that the
design is essentially that of a heavy rectangular box on stilts with
shear wan at one end; (b) the finding that there were defects and a
deficiency in the design of the building would at best be based on
an approximation and, therefore, rightly belonged to the realm of
speculation, rather than of certainty and could very possibly be
outright error; (c) the Commissioner has failed to back up or
support his finding with extensive, complex and highly specialized
computations and analyzes which he himself emphasizes are
necessary in the determination of such a highly technical question;
and (d) the Commissioner has analyzed the design of the PBA
building not in the light of existing and available earthquake
engineering knowledge at the time of the preparation of the design,
but in the light of recent and current standards.
The Commissioner answered the said objections alleging that third-
party defendants' objections were based on estimates or exhibits
not presented during the hearing that the resort to engineering
references posterior to the date of the preparation of the plans was
induced by the third-party defendants themselves who submitted
computations of the third-party defendants are erroneous.
The issue presently considered is admittedly a technical one of the
highest degree. It involves questions not within the ordinary
competence of the bench and the bar to resolve by themselves.
Counsel for the third-party defendants has aptly remarked that
"engineering, although dealing in mathematics, is not an exact
science and that the present knowledge as to the nature of
earthquakes and the behaviour of forces generated by them still
leaves much to be desired; so much so "that the experts of the
different parties, who are all engineers, cannot agree on what
equation to use, as to what earthquake co-efficients are, on the
codes to be used and even as to the type of structure that the PBA
building (is) was (p. 29, Memo, of third- party defendants before the
Commissioner).
The difficulty expected by the Court if tills technical matter were to
be tried and inquired into by the Court itself, coupled with the
intrinsic nature of the questions involved therein, constituted the
reason for the reference of the said issues to a Commissioner
whose qualifications and experience have eminently qualified him
for the task, and whose competence had not been questioned by the
parties until he submitted his report. Within the pardonable limit of
the Court's ability to comprehend the meaning of the
Commissioner's report on this issue, and the objections voiced to
the same, the Court sees no compelling reasons to disturb the
findings of the Commissioner that there were defects and
deficiencies in the design, plans and specifications prepared by
third-party defendants, and that said defects and deficiencies
involved appreciable risks with respect to the accidental forces
which may result from earthquake shocks.
(2) (a) The deviations, if any, made by the defendants from the plans
and specifications, and how said deviations contributed to the
damage sustained by the building.
(b) The alleged failure of defendants to observe the requisite quality
of materials and workmanship in the construction of the building.
These two issues, being interrelated with each other, will be
discussed together.
The findings of the Commissioner on these issues were as follows:
We now turn to the construction of the PBA Building and the alleged
deficiencies or defects in the construction and violations or
deviations from the plans and specifications. All these may be
summarized as follows:
a. Summary of alleged defects as reported by Engineer Mario M.
Bundalian.
(1) Wrongful and defective placing of reinforcing bars.
(2) Absence of effective and desirable integration of the 3 bars in the
cluster.
(3) Oversize coarse aggregates: 1-1/4 to 2" were used. Specification
requires no larger than 1 inch.
(4) Reinforcement assembly is not concentric with the column,
eccentricity being 3" off when on one face the main bars are only 1
1/2' from the surface.
(5) Prevalence of honeycombs,
(6) Contraband construction joints,
(7) Absence, or omission, or over spacing of spiral hoops,
(8) Deliberate severance of spirals into semi-circles in noted on Col.
A-5, ground floor,
(9) Defective construction joints in Columns A-3, C-7, D-7 and D-4,
ground floor,
(10) Undergraduate concrete is evident,
(11) Big cavity in core of Column 2A-4, second floor,
(12) Columns buckled at different planes. Columns buckled worst
where there are no spirals or where spirals are cut. Columns
suffered worst displacement where the eccentricity of the columnar
reinforcement assembly is more acute.
b. Summary of alleged defects as reported by Engr. Antonio
Avecilla.
Columns are first (or ground) floor, unless otherwise stated.
(1) Column D4 — Spacing of spiral is changed from 2" to 5" on
centers,
(2) Column D5 — No spiral up to a height of 22" from the ground
floor,
(3) Column D6 — Spacing of spiral over 4 l/2,
(4) Column D7 — Lack of lateral ties,
(5) Column C7 — Absence of spiral to a height of 20" from the
ground level, Spirals are at 2" from the exterior column face and 6"
from the inner column face,
(6) Column B6 — Lack of spiral on 2 feet below the floor beams,
(7) Column B5 — Lack of spirals at a distance of 26' below the beam,
(8) Column B7 — Spirals not tied to vertical reinforcing bars, Spirals
are uneven 2" to 4",
(9) Column A3 — Lack of lateral ties,
(10) Column A4 — Spirals cut off and welded to two separate
clustered vertical bars,
(11) Column A4 — (second floor Column is completely hollow to a
height of 30"
(12) Column A5 — Spirals were cut from the floor level to the bottom
of the spandrel beam to a height of 6 feet,
(13) Column A6 — No spirals up to a height of 30' above the ground
floor level,
(14) Column A7— Lack of lateralties or spirals,
c. Summary of alleged defects as reported by the experts of the
Third-Party defendants.
Ground floor columns.
(1) Column A4 — Spirals are cut,
(2) Column A5 — Spirals are cut,
(3) Column A6 — At lower 18" spirals are absent,
(4) Column A7 — Ties are too far apart,
(5) Column B5 — At upper fourth of column spirals are either absent
or improperly spliced,
(6) Column B6 — At upper 2 feet spirals are absent,
(7) Column B7 — At upper fourth of column spirals missing or
improperly spliced.
(8) Column C7— Spirals are absent at lowest 18"
(9) Column D5 — At lowest 2 feet spirals are absent,
(10) Column D6 — Spirals are too far apart and apparently
improperly spliced,
(11) Column D7 — Lateral ties are too far apart, spaced 16" on
centers.
There is merit in many of these allegations. The explanations given
by the engineering experts for the defendants are either contrary to
general principles of engineering design for reinforced concrete or
not applicable to the requirements for ductility and strength of
reinforced concrete in earthquake-resistant design and
construction.
We shall first classify and consider defects which may have
appreciable bearing or relation to' the earthquake-resistant property
of the building.
As heretofore mentioned, details which insure ductility at or near
the connections between columns and girders are desirable in
earthquake resistant design and construction. The omission of
spirals and ties or hoops at the bottom and/or tops of columns
contributed greatly to the loss of earthquake-resistant strength. The
plans and specifications required that these spirals and ties be
carried from the floor level to the bottom reinforcement of the
deeper beam (p. 1, Specifications, p. 970, Reference 11). There were
several clear evidences where this was not done especially in some
of the ground floor columns which failed.
There were also unmistakable evidences that the spacings of the
spirals and ties in the columns were in many cases greater than
those called for in the plans and specifications resulting again in
loss of earthquake-resistant strength. The assertion of the
engineering experts for the defendants that the improper spacings
and the cutting of the spirals did not result in loss of strength in the
column cannot be maintained and is certainly contrary to the
general principles of column design and construction. And even
granting that there be no loss in strength at the yield point (an
assumption which is very doubtful) the cutting or improper
spacings of spirals will certainly result in the loss of the plastic
range or ductility in the column and it is precisely this plastic range
or ductility which is desirable and needed for earthquake-resistant
strength.
There is no excuse for the cavity or hollow portion in the column A4,
second floor, and although this column did not fail, this is certainly
an evidence on the part of the contractor of poor construction.
The effect of eccentricities in the columns which were measured at
about 2 1/2 inches maximum may be approximated in relation to
column loads and column and beam moments. The main effect of
eccentricity is to change the beam or girder span. The effect on the
measured eccentricity of 2 inches, therefore, is to increase or
diminish the column load by a maximum of about 1% and to
increase or diminish the column or beam movements by about a
maximum of 2%. While these can certainly be absorbed within the
factor of safety, they nevertheless diminish said factor of safety.
The cutting of the spirals in column A5, ground floor is the subject
of great contention between the parties and deserves special
consideration.
The proper placing of the main reinforcements and spirals in
column A5, ground floor, is the responsibility of the general
contractor which is the UCCI. The burden of proof, therefore, that
this cutting was done by others is upon the defendants. Other than
a strong allegation and assertion that it is the plumber or his men
who may have done the cutting (and this was flatly denied by the
plumber) no conclusive proof was presented. The engineering
experts for the defendants asserted that they could have no
motivation for cutting the bar because they can simply replace the
spirals by wrapping around a new set of spirals. This is not quite
correct. There is evidence to show that the pouring of concrete for
columns was sometimes done through the beam and girder
reinforcements which were already in place as in the case of column
A4 second floor. If the reinforcement for the girder and column is to
subsequently wrap around the spirals, this would not do for the
elasticity of steel would prevent the making of tight column spirals
and loose or improper spirals would result. The proper way is to
produce correct spirals down from the top of the main column bars,
a procedure which can not be done if either the beam or girder
reinforcement is already in place. The engineering experts for the
defendants strongly assert and apparently believe that the cutting of
the spirals did not materially diminish the strength of the column.
This belief together with the difficulty of slipping the spirals on the
top of the column once the beam reinforcement is in place may be a
sufficient motivation for the cutting of the spirals themselves. The
defendants, therefore, should be held responsible for the
consequences arising from the loss of strength or ductility in
column A5 which may have contributed to the damages sustained
by the building.
The lack of proper length of splicing of spirals was also proven in
the visible spirals of the columns where spalling of the concrete
cover had taken place. This lack of proper splicing contributed in a
small measure to the loss of strength.
The effects of all the other proven and visible defects although nor
can certainly be accumulated so that they can contribute to an
appreciable loss in earthquake-resistant strength. The engineering
experts for the defendants submitted an estimate on some of these
defects in the amount of a few percent. If accumulated, therefore,
including the effect of eccentricity in the column the loss in strength
due to these minor defects may run to as much as ten percent.
 To recapitulate: the omission or lack of spirals and ties at the
bottom and/or at the top of some of the ground floor columns
contributed greatly to the collapse of the PBA building since it is at
these points where the greater part of the failure occurred. The
liability for the cutting of the spirals in column A5, ground floor, in
the considered opinion of the Commissioner rests on the shoulders
of the defendants and the loss of strength in this column
contributed to the damage which occurred.
It is reasonable to conclude, therefore, that the proven defects,
deficiencies and violations of the plans and specifications of the
PBA building contributed to the damages which resulted during the
earthquake of August 2, 1968 and the vice of these defects and
deficiencies is that they not only increase but also aggravate the
weakness mentioned in the design of the structure. In other words,
these defects and deficiencies not only tend to add but also to
multiply the effects of the shortcomings in the design of the
building. We may say, therefore, that the defects and deficiencies in
the construction contributed greatly to the damage which occurred.
Since the execution and supervision of the construction work in the
hands of the contractor is direct and positive, the presence of
existence of all the major defects and deficiencies noted and proven
manifests an element of negligence which may amount to
imprudence in the construction work. (pp. 42-49, Commissioners
Report).
As the parties most directly concerned with this portion of the Commissioner's
report, the defendants voiced their objections to the same on the grounds that the
Commissioner should have specified the defects found by him to be
"meritorious"; that the Commissioner failed to indicate the number of cases where
the spirals and ties were not carried from the floor level to the bottom
reinforcement of the deeper beam, or where the spacing of the spirals and ties in
the columns were greater than that called for in the specifications; that the hollow
in column A4, second floor, the eccentricities in the columns, the lack of proper
length of splicing of spirals, and the cut in the spirals in column A5, ground floor,
did not aggravate or contribute to the damage suffered by the building; that the
defects in the construction were within the tolerable margin of safety; and that the
cutting of the spirals in column A5, ground floor, was done by the plumber or his
men, and not by the defendants.
Answering the said objections, the Commissioner stated that, since many of the
defects were minor only the totality of the defects was considered. As regards the
objection as to failure to state the number of cases where the spirals and ties were
not carried from the floor level to the bottom reinforcement, the Commissioner
specified groundfloor columns B-6 and C-5 the first one without spirals for 03
inches at the top, and in the latter, there were no spirals for 10 inches at the
bottom. The Commissioner likewise specified the first storey columns where the
spacings were greater than that called for in the specifications to be columns B-5,
B-6, C-7, C-6, C-5, D-5 and B-7. The objection to the failure of the Commissioner to
specify the number of columns where there was lack of proper length of splicing
of spirals, the Commissioner mentioned groundfloor columns B-6 and B-5 where
all the splices were less than 1-1/2 turns and were not welded, resulting in some
loss of strength which could be critical near the ends of the columns. He answered
the supposition of the defendants that the spirals and the ties must have been
looted, by calling attention to the fact that the missing spirals and ties were only in
two out of the 25 columns, which rendered said supposition to be improbable.
The Commissioner conceded that the hollow in column A-4, second floor, did not
aggravate or contribute to the damage, but averred that it is "evidence of poor
construction." On the claim that the eccentricity could be absorbed within the
factor of safety, the Commissioner answered that, while the same may be true, it
also contributed to or aggravated the damage suffered by the building.
The objection regarding the cutting of the spirals in Column A-5, groundfloor, was
answered by the Commissioner by reiterating the observation in his report that
irrespective of who did the cutting of the spirals, the defendants should be held
liable for the same as the general contractor of the building. The Commissioner
further stated that the loss of strength of the cut spirals and inelastic deflections
of the supposed lattice work defeated the purpose of the spiral containment in the
column and resulted in the loss of strength, as evidenced by the actual failure of
this column.
Again, the Court concurs in the findings of the Commissioner on these issues and
fails to find any sufficient cause to disregard or modify the same. As found by the
Commissioner, the "deviations made by the defendants from the plans and
specifications caused indirectly the damage sustained and that those deviations
not only added but also aggravated the damage caused by the defects in the plans
and specifications prepared by third-party defendants. (Rollo, Vol. I, pp. 128-142)
The afore-mentioned facts clearly indicate the wanton negligence of both the
defendant and the third-party defendants in effecting the plans, designs,
specifications, and construction of the PBA building and We hold such negligence
as equivalent to bad faith in the performance of their respective tasks.
Relative thereto, the ruling of the Supreme Court in Tucker v. Milan (49 O.G. 4379,
4380) which may be in point in this case reads:
One who negligently creates a dangerous condition cannot escape liability for the
natural and probable consequences thereof, although the act of a third person, or
an act of God for which he is not responsible, intervenes to precipitate the loss.

As already discussed, the destruction was not purely an act of God. Truth to tell
hundreds of ancient buildings in the vicinity were hardly affected by the
earthquake. Only one thing spells out the fatal difference; gross negligence and
evident bad faith, without which the damage would not have occurred.

WHEREFORE, the decision appealed from is hereby MODIFIED and considering

the special and environmental circumstances of this case, We deem it reasonable
to render a decision imposing, as We do hereby impose, upon the defendant and
the third-party defendants (with the exception of Roman Ozaeta) a solidary (Art.
1723, Civil Code, Supra, p. 10) indemnity in favor of the Philippine Bar Association
of FIVE MILLION (P5,000,000.00) Pesos to cover all damages (with the exception of
attorney's fees) occasioned by the loss of the building (including interest charges
and lost rentals) and an additional ONE HUNDRED THOUSAND (P100,000.00)
Pesos as and for attorney's fees, the total sum being payable upon the finality of
this decision. Upon failure to pay on such finality, twelve (12%) per cent interest
per annum shall be imposed upon afore-mentioned amounts from finality until
paid. Solidary costs against the defendant and third-party defendants (except
Roman Ozaeta).

SO ORDERED
G.R. No. 165732             December 14, 2006
SAFEGUARD SECURITY AGENCY, INC., and ADMER PAJARILLO, petitioners,
vs.
LAURO TANGCO, VAL TANGCO, VERN LARRY TANGCO, VAN LAURO TANGCO,
VON LARRIE TANGCO, VIEN LARI TANGCO and VIVIEN LAURIZ
TANGCO, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari filed by Safeguard Security Agency, Inc.
(Safeguard) and Admer Pajarillo (Pajarillo) assailing the Decision1 dated July 16, 2004
and the Resolution2 dated October 20, 2004 issued by the Court of Appeals (CA) in CA-
G.R. CV No. 77462.
On November 3, 1997, at about 2:50 p.m., Evangeline Tangco (Evangeline) went to
Ecology Bank, Katipunan Branch, Quezon City, to renew her time deposit per advise of
the bank's cashier as she would sign a specimen card. Evangeline, a duly licensed
firearm holder with corresponding permit to carry the same outside her residence,
approached security guard Pajarillo, who was stationed outside the bank, and pulled out
her firearm from her bag to deposit the same for safekeeping. Suddenly, Pajarillo shot
Evangeline with his service shotgun hitting her in the abdomen instantly causing her
death.
Lauro Tangco, Evangeline's husband, together with his six minor children (respondents)
filed with the Regional Trial Court (RTC) of Quezon City, a criminal case of Homicide
against Pajarillo, docketed as Criminal Case No. 0-97-73806 and assigned to Branch 78.
Respondents reserved their right to file a separate civil action in the said criminal case.
The RTC of Quezon City subsequently convicted Pajarillo of Homicide in its Decision
dated January 19, 2000.3 On appeal to the CA, the RTC decision was affirmed with
modification as to the penalty in a Decision4 dated July 31, 2000. Entry of Judgment was
made on August 25, 2001.
Meanwhile, on January 14, 1998, respondents filed with RTC, Branch 273, Marikina City,
a complaint5 for damages against Pajarillo for negligently shooting Evangeline and
against Safeguard for failing to observe the diligence of a good father of a family to
prevent the damage committed by its security guard. Respondents prayed for actual,
moral and exemplary damages and attorney's fees.
In their Answer,6 petitioners denied the material allegations in the complaint and alleged
that Safeguard exercised the diligence of a good father of a family in the selection and
supervision of Pajarillo; that Evangeline's death was not due to Pajarillo's negligence as
the latter acted only in self-defense. Petitioners set up a compulsory counterclaim for
moral damages and attorney's fees.
Trial thereafter ensued. On January 10, 2003, the RTC rendered its Decision,7 the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs, the heirs of
Evangeline Tangco, and against defendants Admer Pajarillo and Safeguard
Security Agency, Inc. ordering said defendants to pay the plaintiffs, jointly and
severally, the following:
1. ONE HUNDRED FIFTY SEVEN THOUSAND FOUR HUNDRED
THIRTY PESOS (P157,430.00), as actual damages
2. FIFTY THOUSAND PESOS (P50,000.00) as death indemnity;
3. ONE MILLION PESOS (P1,000,000.00), as moral damages;
4. THREE HUNDRED THOUSAND PESOS (P300,000.00), as exemplary
damages;
5. THIRTY THOUSAND PESOS (P30,000.00), as attorney's fees; and
6. costs of suit.
For lack of merit, defendants' counterclaim is hereby DISMISSED.
SO ORDERED. 8
The RTC found respondents to be entitled to damages. It rejected Pajarillo's claim that
he merely acted in self-defense. It gave no credence to Pajarillo's bare claim that
Evangeline was seen roaming around the area prior to the shooting incident since
Pajarillo had not made such report to the head office and the police authorities. The RTC Petitioners filed their Motion for Reconsideration which the CA denied in a Resolution
further ruled that being the guard on duty, the situation demanded that he should have dated October 20, 2004.
exercised proper prudence and necessary care by asking Evangeline for him to ascertain
the matter instead of shooting her instantly; that Pajarillo had already been convicted of Hence, the instant Petition for Review on Certiorari with the following assignment of
Homicide in Criminal Case No. 0-97-73806; and that he also failed to proffer proof errors, to wit:
negating liability in the instant case.
The Honorable Court of Appeals gravely erred in finding petitioner Pajarillo liable
The RTC also found Safeguard as employer of Pajarillo to be jointly and severally liable to respondents for the payment of damages and other money claims.
with Pajarillo. It ruled that while it may be conceded that Safeguard had perhaps
exercised care in the selection of its employees, particularly of Pajarillo, there was no The Honorable Court of Appeals gravely erred when it applied Article 103 of the
sufficient evidence to show that Safeguard exercised the diligence of a good father of a Revised Penal Code in holding petitioner Safeguard solidarily [sic] liable with
family in the supervision of its employee; that Safeguard's evidence simply showed that it petitioner Pajarillo for the payment of damages and other money claims.
required its guards to attend trainings and seminars which is not the supervision
contemplated under the law; that supervision includes not only the issuance of
The Honorable Court of Appeals gravely erred in failing to find that petitioner
regulations and instructions designed for the protection of persons and property, for the
Safeguard Security Agency, Inc. exercised due diligence in the selection and
guidance of their servants and employees, but also the duty to see to it that such
supervision of its employees, hence, should be excused from any liability.10
regulations and instructions are faithfully complied with.
The issues for resolution are whether (1) Pajarillo is guilty of negligence in shooting
Petitioners appealed the RTC decision to the CA. On July 16, 2004, the CA issued its
Evangeline; and (2) Safeguard should be held solidarily liable for the damages awarded
assailed Decision, the dispositive portion of which reads:
to respondents.
IN VIEW OF ALL THE FOREGOING, the appealed decision is hereby
Safeguard insists that the claim for damages by respondents is based
AFFIRMED, with the modification that Safeguard Security Agency, Inc.'s civil
on culpa aquiliana under Article 217611 of the Civil Code, in which case, its liability is
liability in this case is only subsidiary under Art. 103 of the Revised Penal Code.
jointly and severally with Pajarillo. However, since it has established that it had exercised
No pronouncement as to costs.9
due diligence in the selection and supervision of Pajarillo, it should be exonerated from
civil liability.
In finding that Safeguard is only subsidiarily liable, the CA held that the applicable
provisions are not Article 2180 in relation to Article 2176 of the Civil Code, on quasi-
We will first resolve whether the CA correctly held that respondents, in filing a separate
delicts, but the provisions on civil liability arising from felonies under the Revised Penal
civil action against petitioners are limited to the recovery of damages arising from a crime
Code; that since Pajarillo had been found guilty of Homicide in a final and executory
or delict, in which case the liability of Safeguard as employer under Articles 102 and 103
judgment and is said to be serving sentence in Muntinlupa, he must be adjudged civilly
of the Revised Penal Code12 is subsidiary and the defense of due diligence in the
liable under the provisions of Article 100 of the Revised Penal Code since the civil liability
selection and supervision of employee is not available to it.
recoverable in the criminal action is one solely dependent upon conviction, because said
liability arises from the offense charged and no other; that this is also the civil liability that
is deemed extinguished with the extinction of the penal liability with a pronouncement The CA erred in ruling that the liability of Safeguard is only subsidiary.
that the fact from which the civil action might proceed does not exist; that unlike in civil
liability arising from quasi-delict, the defense of diligence of a good father of a family in The law at the time the complaint for damages was filed is Rule 111 of the 1985 Rules
the employment and supervision of employees is inapplicable and irrelevant in civil on Criminal Procedure, as amended, to wit:
liabilities based on crimes or ex-delicto; that Article 103 of the Revised Penal Code
provides that the liability of an employer for the civil liability of their employees is only SECTION 1. Institution of criminal and civil actions. - When a criminal action is
subsidiary, not joint or solidary. instituted, the civil action for the recovery of civil liability is impliedly instituted with
the criminal action, unless the offended party waives the civil action, reserves his
right to institute it separately, or institutes the civil action prior to the criminal
action.
 Such civil action includes recovery of indemnity under the Revised Penal Code,
and damages under Articles 32, 33, 34, and 2176 of the Civil Code of the
Philippines arising from the same act or omission of the accused.
Respondents reserved the right to file a separate civil action and in fact filed the same on
January 14, 1998.
The CA found that the source of damages in the instant case must be the crime of
homicide, for which he had already been found guilty of and serving sentence thereof,
thus must be governed by the Revised Penal Code.
We do not agree.
An act or omission causing damage to another may give rise to two separate civil
liabilities on the part of the offender, i.e., (1) civil liability ex delicto, under Article 100 of
the Revised Penal Code; and (2) independent civil liabilities, such as those (a) not arising
from an act or omission complained of as a felony, e.g., culpa contractual or obligations
arising from law under Article 31 of the Civil Code, intentional torts under Articles 32 and
34, and culpa aquiliana under Article 2176 of the Civil Code; or (b) where the injured
party is granted a right to file an action independent and distinct from the criminal action
under Article 33 of the Civil Code. Either of these liabilities may be enforced against the
offender subject to the caveat under Article 2177 of the Civil Code that the offended party
cannot recover damages twice for the same act or omission or under both causes.13
It is important to determine the nature of respondents' cause of action. The nature of a
cause of action is determined by the facts alleged in the complaint as constituting the
cause of action.14 The purpose of an action or suit and the law to govern it is to be
determined not by the claim of the party filing the action, made in his argument or brief,
but rather by the complaint itself, its allegations and prayer for relief.15
The pertinent portions of the complaint read:
7. That Defendant Admer A. Pajarillo was the guard assigned and posted in the
Ecology Bank – Katipunan Branch, Quezon City, who was employed and under
employment of Safeguard Security Agency, Inc. hence there is employer-
employee relationship between co-defendants.
The Safeguard Security Agency, Inc. failed to observe the diligence of a good
father of a family to prevent damage to herein plaintiffs.
8. That defendant Admer Pajarillo upon seeing Evangeline Tangco, who brought
her firearm out of her bag, suddenly without exercising necessary caution/care,
and in idiotic manner, with the use of his shotgun, fired and burst bullets upon
Evangeline M. Tangco, killing her instantly. x x x
xxxx
16. That defendants, being employer and the employee are jointly and severally
liable for the death of Evangeline M. Tangco.16
Thus, a reading of respondents' complaint shows that the latter are invoking their right to
recover damages against Safeguard for their vicarious responsibility for the injury caused
by Pajarillo's act of shooting and killing Evangeline under Article 2176, Civil Code which
provides:
ARTICLE 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 scope of Article 2176 is not limited to acts or omissions resulting from negligence.
In Dulay v. Court of Appeals,17 we held:
x x x Well-entrenched is the doctrine that Article 2176 covers not only acts
committed with negligence, but also acts which are voluntary and intentional. As
far back as the definitive case of Elcano v. Hill (77 SCRA 98 [1977]), this Court
already held that:
"x x x Article 2176, where it refers to "fault or negligence," covers not only
acts "not punishable by law" but also acts criminal in character, whether
intentional and voluntary or negligent. Consequently, a separate civil action
lies against the offender in a criminal act, whether or not he is criminally
prosecuted and found guilty or acquitted, provided that the offended party is not
allowed, if he is actually charged also criminally, to recover damages on both
scores, and would be entitled in such eventuality only to the bigger award of the
two, assuming the awards made in the two cases vary. In other words, the
extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers
exclusively to civil liability founded on Article 100 of the Revised Penal Code,
whereas the civil liability for the same act considered as quasi-delict only and not
as a crime is not extinguished even by a declaration in the criminal case that the
criminal act charged has not happened or has not been committed by the
accused. Briefly stated, We here hold, in reiteration of Garcia, that culpa
 aquiliana includes voluntary and negligent acts which may be punishable by law."
(Emphasis supplied)
The civil action filed by respondents was not derived from the criminal liability of Pajarillo
in the criminal case but one based on culpa aquiliana or quasi-delict which is separate
and distinct from the civil liability arising from crime.18 The source of the obligation sought
to be enforced in the civil case is a quasi-delict not an act or omission punishable by law.
In Bermudez v. Melencio-Herrera,19 where the issue involved was whether the civil action
filed by plaintiff-appellants is founded on crime or on quasi-delict, we held:
x x x The trial court treated the case as an action based on a crime in view of the
reservation made by the offended party in the criminal case (Criminal Case No.
92944), also pending before the court, to file a separate civil action. Said the trial
court:
It would appear that plaintiffs instituted this action on the assumption that
defendant Pontino's negligence in the accident of May 10, 1969 constituted
a quasi-delict. The Court cannot accept the validity of that assumption. In
Criminal Case No. 92944 of this Court, plaintiffs had already appeared as
complainants. While that case was pending, the offended parties reserved the
right to institute a separate civil action. If, in a criminal case, the right to file a
separate civil action for damages is reserved, such civil action is to be based on
crime and not on tort. That was the ruling in Joaquin vs. Aniceto, L-18719, Oct.
31, 1964.
We do not agree. The doctrine in the case cited by the trial court is inapplicable
to the instant case x x x.
xxxx
In cases of negligence, the injured party or his heirs has the choice between an
action to enforce the civil liability arising from crime under Article 100 of the
Revised Penal Code and an action for quasi-delict under Article 2176-2194 of the
Civil Code. If a party chooses the latter, he may hold the employer solidarily liable
for the negligent act of his employee, subject to the employer's defense of
exercise of the diligence of a good father of the family.
In the case at bar, the action filed by appellant was an action for damages based
on quasi-delict. The fact that appellants reserved their right in the criminal
case to file an independent civil action did not preclude them from
choosing to file a civil action for quasi-delict.20 (Emphasis supplied)
Although the judgment in the criminal case finding Pajarillo guilty of Homicide is already
final and executory, such judgment has no relevance or importance to this case.21 It
would have been entirely different if respondents' cause of action was for damages
arising from a delict, in which case the CA is correct in finding Safeguard to be only
subsidiary liable pursuant to Article 103 of the Revised Penal Code.22
As clearly shown by the allegations in the complaint, respondents' cause of action is
based on quasi-delict. Under Article 2180 of the Civil Code, when the injury is caused by
the negligence of the employee, there instantly arises a presumption of law that there
was negligence on the part of the master or the employer either in the selection of the
servant or employee, or in the supervision over him after selection or both. The liability of
the employer under Article 2180 is direct and immediate. Therefore, it is incumbent upon
petitioners to prove that they exercised the diligence of a good father of a family in the
selection and supervision of their employee.
We must first resolve the issue of whether Pajarillo was negligent in shooting Evangeline.
The issue of negligence is factual in nature. Whether a person is negligent or not is a
question of fact, which, as a general rule, we cannot pass upon in a petition for review
on certiorari, as our jurisdiction is limited to reviewing errors of law.23 Generally, factual
findings of the trial court, affirmed by the CA, are final and conclusive and may not be
reviewed on appeal. The established exceptions are: (1) when the inference made is
manifestly mistaken, absurd or impossible; (2) when there is grave abuse of discretion;
(3) when the findings are grounded entirely on speculations, surmises or conjectures; (4)
when the judgment of the CA is based on misapprehension of facts; (5) when the
findings of fact are conflicting; (6) when the CA, in making its findings, went beyond the
issues of the case and the same is contrary to the admissions of both appellant and
appellee; (7) when the findings of fact are conclusions without citation of specific
evidence on which they are based; (8) when the CA manifestly overlooked certain
relevant facts not disputed by the parties and which, if properly considered, would justify
a different conclusion; and (9) when the findings of fact of the CA are premised on the
absence of evidence and are contradicted by the evidence on record. [24]
A thorough review of the records of the case fails to show any cogent reason for us to
deviate from the factual finding of the trial court and affirmed by the CA that petitioner
Pajarillo was guilty of negligence in shooting Evangeline.
Respondents' evidence established that Evangeline's purpose in going to the bank was
to renew her time deposit.25 On the other hand, Pajarillo claims that Evangeline drew a
gun from her bag and aimed the same at him, thus, acting instinctively, he shot her in
self-defense.
Pajarillo testified that when Evangeline aimed the gun at him at a distance of about one
meter or one arm's length26 he stepped backward, loaded the chamber of his gun and
shot her.27 It is however unimaginable that petitioner Pajarillo could still make such
movements if indeed the gun was already pointed at him. Any movement could have
prompted Evangeline to pull the trigger to shoot him.
Petitioner Pajarillo would like to justify his action in shooting Evangeline on his mere
apprehension that Evangeline will stage a bank robbery. However, such claim is
befuddled by his own testimony. Pajarillo testified that prior to the incident, he saw
Evangeline roaming under the fly over which was about 10 meters away from the
bank28 and saw her talking to a man thereat;29 that she left the man under the fly-over,
crossed the street and approached the bank. However, except for the bare testimony of
Pajarillo, the records do not show that indeed Evangeline was seen roaming near the
vicinity of the bank and acting suspiciously prior to the shooting incident. In fact, there is
no evidence that Pajarillo called the attention of his head guard or the bank's branch
manager regarding his concerns or that he reported the same to the police authorities
whose outpost is just about 15 meters from the bank.
Moreover, if Evangeline was already roaming the vicinity of the bank, she could have
already apprised herself that Pajarillo, who was posted outside the bank, was armed with
a shotgun; that there were two guards inside the bank30 manning the entrance door.
Thus, it is quite incredible that if she really had a companion, she would leave him under
the fly-over which is 10 meters far from the bank and stage a bank robbery all by herself
without a back-up. In fact, she would have known, after surveying the area, that aiming
her gun at Pajarillo would not ensure entrance to the bank as there were guards manning
the entrance door.
Evidence, to be believed, must not only proceed from the mouth of a credible witness,
but it must be credible in itself — such as the common experience and observation of
mankind can approve as probable under the circumstances. We have no test of the truth
of human testimony, except its conformity to our knowledge, observation and experience.
Whatever is repugnant to these belongs to the miraculous and is outside judicial
cognizance.31
That Evangeline just wanted to deposit her gun before entering the bank and was
actually in the act of pulling her gun from her bag when petitioner Pajarillo recklessly shot
her, finds support from the contentions raised in petitioners' petition for review where
they argued that when Evangeline approached the bank, she was seen pulling a gun
from inside her bag and petitioner Pajarillo who was suddenly beset by fear and
perceived the act as a dangerous threat, shot and killed the deceased out of pure
instinct;32 that the act of drawing a gun is a threatening act, regardless of whether or not
the gun was intended to be used against petitioner Pajarillo;33 that the fear that was
created in the mind of petitioner Pajarillo as he saw Evangeline Tangco drawing a gun
from her purse was suddenly very real and the former merely reacted out of pure self-
preservation.34
Considering that unlawful aggression on the part of Evangeline is absent, Pajarillo's
claim of self-defense cannot be accepted specially when such claim was uncorroborated
by any separate competent evidence other than his testimony which was even doubtful.
Pajarillo's apprehension that Evangeline will shoot him to stage a bank robbery has no
basis at all. It is therefore clear that the alleged threat of bank robbery was just a figment
of Pajarillo's imagination which caused such unfounded unlawful aggression on his part.
Petitioners argue that Evangeline was guilty of contributory negligence. Although she
was a licensed firearm holder, she had no business bringing the gun in such
establishment where people would react instinctively upon seeing the gun; that had
Evangeline been prudent, she could have warned Pajarillo before drawing the gun and
did not conduct herself with suspicion by roaming outside the vicinity of the bank; that
she should not have held the gun with the nozzle pointed at Pajarillo who mistook the act
as hold up or robbery.
We are not persuaded.
As we have earlier held, Pajarillo failed to substantiate his claim that Evangeline was
seen roaming outside the vicinity of the bank and acting suspiciously prior to the shooting
incident. Evangeline's death was merely due to Pajarillo's negligence in shooting her on
his imagined threat that Evangeline will rob the bank.
Safeguard contends that it cannot be jointly held liable since it had adequately shown
that it had exercised the diligence required in the selection and supervision of its
employees. It claims that it had required the guards to undergo the necessary training
and to submit the requisite qualifications and credentials which even the RTC found to
have been complied with; that the RTC erroneously found that it did not exercise the
diligence required in the supervision of its employee. Safeguard further claims that it
conducts monitoring of the activities of its personnel, wherein supervisors are assigned
to routinely check the activities of the security guards which include among others,
whether or not they are in their proper post and with proper equipment, as well as regular
evaluations of the employees' performances; that the fact that Pajarillo loaded his firearm
contrary to Safeguard's operating procedure is not sufficient basis to say that Safeguard
had failed its duty of proper supervision; that it was likewise error to say that Safeguard
was negligent in seeing to it that the procedures and policies were not properly
implemented by reason of one unfortunate event.
We are not convinced.
Article 2180 of the Civil Code provides:
 Art. 2180. The obligation imposed by Article 2176 is demandable not only for
one's own acts or omissions, but also for those of persons for whom one is
responsible.
xxxx
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.
xxxx
The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family
to prevent damage.
As the employer of Pajarillo, Safeguard is primarily and solidarily liable for the quasi-
delict committed by the former. Safeguard is presumed to be negligent in the selection
and supervision of his employee by operation of law. This presumption may be overcome
only by satisfactorily showing that the employer exercised the care and the diligence of a
good father of a family in the selection and the supervision of its employee.
In the selection of prospective employees, employers are required to examine them as to
their qualifications, experience, and service records.35 On the other hand, due diligence in
the supervision of employees includes the formulation of suitable rules and regulations
for the guidance of employees and the issuance of proper instructions intended for the
protection of the public and persons with whom the employer has relations through his or
its employees and the imposition of necessary disciplinary measures upon employees in
case of breach or as may be warranted to ensure the performance of acts indispensable
to the business of and beneficial to their employer. To this, we add that actual
implementation and monitoring of consistent compliance with said rules should be the
constant concern of the employer, acting through dependable supervisors who should
regularly report on their supervisory functions.36 To establish these factors in a trial
involving the issue of vicarious liability, employers must submit concrete proof, including
documentary evidence.
We agree with the RTC's finding that Safeguard had exercised the diligence in the
selection of Pajarillo since the record shows that Pajarillo underwent a psychological and
neuro-psychiatric evaluation conducted by the St. Martin de Porres Center where no
psychoses ideations were noted, submitted a certification on the Pre-licensing training
course for security guards, as well as police and NBI clearances.
The RTC did not err in ruling that Safeguard fell short of the diligence required in the
supervision of its employee, particularly Pajarillo. In this case, while Safeguard presented
Capt. James Camero, its Director for Operations, who testified on the issuance of
company rules and regulations, such as the Guidelines of Guards Who Will Be Assigned
To Banks,37 Weapons Training,38 Safeguard Training Center Marksmanship Training
Lesson Plan,39 Disciplinary/Corrective Sanctions,40 it had also been established during
Camero's cross-examination that Pajarillo was not aware of such rules and
regulations.41 Notwithstanding Camero's clarification on his re-direct examination that
these company rules and regulations are lesson plans as a basis of guidelines of the
instructors during classroom instructions and not necessary to give students copy of the
same,42 the records do not show that Pajarillo had attended such classroom instructions.
The records also failed to show that there was adequate training and continuous
evaluation of the security guard's performance. Pajarillo had only attended an in-service
training on March 1, 1997 conducted by Toyota Sta. Rosa, his first assignment as
security guard of Safeguard, which was in collaboration with Safeguard. It was
established that the concept of such training was purely on security of equipments to be
guarded and protection of the life of the employees.43
It had not been established that after Pajarillo's training in Toyota, Safeguard had ever
conducted further training of Pajarillo when he was later assigned to guard a bank which
has a different nature of business with that of Toyota. In fact, Pajarillo testified that being
on duty in a bank is different from being on duty in a factory since a bank is a very
sensitive area.44
Moreover, considering his reactions to Evangeline's act of just depositing her firearm for
safekeeping, i.e., of immediately shooting her, confirms that there was no training or
seminar given on how to handle bank clients and on human psychology.
Furthermore, while Safeguard would like to show that there were inspectors who go
around the bank two times a day to see the daily performance of the security guards
assigned therein, there was no record ever presented of such daily inspections. In fact, if
there was really such inspection made, the alleged suspicious act of Evangeline could
have been taken noticed and reported.
Turning now to the award of damages, we find that the award of actual damages in the
amount P157,430.00 which were the expenses incurred by respondents in connection
with the burial of Evangeline were supported by receipts. The award of P50,000.00 as
civil indemnity for the death of Evangeline is likewise in order.
As to the award of moral damages, Article 2206 of the Civil Code provides that the
spouse, legitimate children and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of the death of the
deceased. Moral damages are awarded to enable the injured party to obtain means,
diversions or amusements that will serve to alleviate the moral suffering he/she has
undergone, by reason of the defendant's culpable action. Its award is aimed at
restoration, as much as possible, of the spiritual status quo ante; thus it must be
proportionate to the suffering inflicted.45 The intensity of the pain experienced by the
relatives of the victim is proportionate to the intensity of affection for him and bears no
relation whatsoever with the wealth or means of the offender.46

In this case, respondents testified as to their moral suffering caused by Evangeline's

death was so sudden causing respondent Lauro to lose a wife and a mother to six
children who were all minors at the time of her death. In People v. Teehankee, Jr.,47 we
awarded one million pesos as moral damages to the heirs of a seventeen-year-old girl
who was murdered. In Metro Manila Transit Corporation v. Court of Appeals,48 we
likewise awarded the amount of one million pesos as moral damages to the parents of a
third year high school student and who was also their youngest child who died in a
vehicular accident since the girl's death left a void in their lives. Hence, we hold that the
respondents are also entitled to the amount of one million pesos as Evangeline's death
left a void in the lives of her husband and minor children as they were deprived of her
love and care by her untimely demise.

We likewise uphold the award of exemplary damages in the amount of P300,000.00.

Under Article 2229 of the Civil Code, exemplary damages are imposed by way of
example or correction for the public good, in addition to moral, temperate, liquidated or
compensatory damages.49 It is awarded as a deterrent to socially deleterious actions.
In quasi-delict, exemplary damages may be granted if the defendant acted with gross
negligence.50

Pursuant to Article 2208 of the Civil Code, attorney's fees may be recovered when, as in
the instant case, exemplary damages are awarded. Hence, we affirm the award of
attorney's fees in the amount of P30,000.00.

WHEREFORE, the petition for review is DENIED. The Decision dated July 16, 2004 of
the Court of Appeals is AFFIRMED with MODIFICATION that the civil liability of
petitioner Safeguard Security Agency, Inc. is SOLIDARY and PRIMARY under Article
2180 of the Civil Code.

SO ORDERED
 [G.R. No. 165413 : February 22, 2012]
PHILAM INSURANCE COMPANY, INC. AND AMERICAN HOME
INSURANCE CO., PETITIONERS, VS. COURT OF APPEALS, AND D.M.
CONSUNJI INC., RESPONDENTS.
DECISION
SERENO, J.:
In this Petition for Review on Certiorari under Rule 45, petitioners Philam
Insurance Company, Incorporated (Philam) and American Home Insurance
Company (AHIC) seek the reversal of the Decision of the Court of Appeals
(CA) in CA-G.R. CV No. 60098 dated 28 June 2004 and its Resolution dated
24 September 2004. The CA Decision reversed and set aside that of the
Regional Trial Court (RTC) of Makati City in Civil Case No. 95-540 dated 28
April 1998.cralaw
The CA ruled against petitioners’ demand for the recovery of the value of the
insured’s generator set (genset) against private respondent D.M. Consunji
Incorporated (DMCI), whose alleged negligence damaged the said equipment.
The antecedent facts are as follows:
Four gensets from the United States of America were ordered by Citibank,
N.A. (Citibank). Petitioner AHIC insured these gensets under Certificate No.
60221 for USD 851,500 covering various risks.[1] The insurance policy
provided that the claim may be paid in the Philippines by Philam Insurance
Co., Inc, AHIC’s local settling agent.[2]
Citibank’s broker-forwarder, Melicia International Services (MIS),
[3]
 transported the gensets in separate container vans. It was instructed by
Citibank to deliver and haul one genset to Makati City,[4] where the latter’s
office was being constructed by the building contractor, DMCI.
MIS was further instructed to place the 13-ton genset[5] at the top of
Citibank’s building. The broker-forwarder declined, since it had no power
cranes.[6] Thus, Citibank assigned the job to private respondent DMCI, which
accepted the task.[7]
On 16 October 1993, DMCI lifted the genset with a crane (Unic-K-2000) that
had a hydraulic telescopic boom and a loading capacity of 20 tons.[8] During
the lifting process, both the crane’s boom and the genset fell and got
damaged.[9]
The events leading to the fall, based mainly on the signed statement[10] of
DMCI’s crane operator, Mr. Ariel Del Pilar, transpired as follows:
The genset was lifted clear out of the open top container by the crane. After
clearing the container van, the crane operator, Mr. Ariel del Pilar, had to
position the genset over the vicinity of the storage area. To do this, the boom
of the crane carrying the generator set had to be turned (swing) to face right
and stopped when it loomed over the storage area. The genset was swinging
as it came to a stop following the right turn. The crane operator waited for
the genset to stop swinging for him to perform the next maneuver. The boom
had to be raised three (3) degrees more from its position at 75 degrees, up
to 78 degrees. At 78 degrees the genset could be lowered straight down to
the delivery storage area.
The genset stopped swinging. The crane operator proceeded to raise the
boom to 78 degrees. While so doing, the crane operator felt a sudden upward
movement of the boom. The genset began to swing in and out, towards the
crane operator, then outward and away. The body of the crane lifted off the
ground, the boom fell from an approximate height of 9 feet, first hitting a
Meralco line, then falling to the ground.[11]
After two days, DMCI’s surveyor, Manila Adjusters & Surveyors Co. (MASC)
assessed the condition of the crane and the genset.[12] According to its Survey
Certificate, the genset was already deformed.[13]
Citibank demanded from DMCI the full value of the damaged genset,
including the cost, insurance and freight amounting to USD 212,850.
[14]
 Private respondent refused to pay, asserting that the damage was caused
by an accident.[15]
Thereafter, Citibank filed an insurance claim with Philam, AHIC’s local settling
agent, for the value of the genset.  Philam paid the claim for PhP 5,866,146.
[16]
Claiming the right of subrogation, Philam demanded the reimbursement of
the genset’s value from DMCI, which denied liability.[17] Thus, on 19 April
1994, Philam filed a Complaint with the RTC to recover the value of the
insured genset.[18]
At the trial court, petitioner Philam did not invoke res ipsa loquitur. Rather,
during the pre-trial conference, the parties agreed on this sole issue:
“Whether or not the damage was the fault of the defendant or within their
area of supervision at the time the cause of damage occurred.”[19]
The RTC ruled in favor of Philam and ordered as follows:
WHEREFORE PREMISES CONSIDERED, judgment is hereby rendered in favor
of plaintiff as against defendant ordering the latter to pay plaintiff as follows:
1. the amount of PhP 5,866,146.00 as actual damages with
interest at 6% per annum from the date of filing of this
Complaint until the sum is fully paid.
2. the amount equivalent to 25% of the sum recoverable as
attorney’s fees;
3. cost of suit.
SO ORDERED. [20]
The trial court ruled that the loss or damage to the genset was due to the
negligent operation of the crane:
This Court finds that the loss or damage brought about by the falling of the
genset was caused by negligence in the operation of the crane in lifting the
genset to as high as 9 feet causing the boom to fall [sic], hitting the Meralco
line to ground, sustaining heavy damage, which negligence was attributable
to the crane operator.[21]
DMCI appealed to the CA, which reversed and set aside the RTC’s Decision.
The appellate court ruled that the falling of the genset was a clear case of
accident and, hence, DMCI could not be held responsible.
In this case, plaintiffs-appellees failed to discharge the burden of proving
negligence on the part of the defendant-appellant’s crane operator and other
employees assisting in unloading the genset.
xxx                xxx                 xxx
The falling of the genset to the ground was a clear case of accident xxx. xxx
[D]efendant-appellant cannot be held responsible for the event which could
not be foreseen, or which though foreseen, was inevitable.[22]
Accordingly, the dispositive portion reads:
WHEREFORE, there being merit in the appeal, the assailed Decision dated
April 28, 1998 of the Regional Trial Court, Branch 61 of Makati City in Civil
Case no. 95-1450, is REVERSED and SET ASIDE, and the complaint
dismissed.
SO ORDERED.[23]
Hence, the pertinent issue in this Petition is whether petitioners have
sufficiently established the negligence of DMCI for the former to recover the
value of the damaged genset. While this Court is not a trier of facts, and
hesitates to review the factual findings of the lower courts, in this occasion, it
would do so considering the conflicting legal conclusions of the RTC and the
CA.
For DMCI to be liable for damages, negligence on its part must be
established.[24] Additionally, that finding must be the proximate cause of the
damage to the genset.[25] We agree with the CA that Philam failed to establish
DMCI’s negligence.
Negligence is the want of care required by the circumstances.[26] It is
a conduct that involves an unreasonably great risk of causing
damage; or, more fully, a conduct that falls below the standard established
by law for the protection of others against unreasonably great risk of harm.[27]
Philam blames the conduct of DMCI’s crane operator for the genset’s fall.
Essentially, it points out the following errors in operating the crane:
First, Del Pilar did not give any reason for his act of raising the boom from 75
to 78 degrees at the stage when the genset was already set for lowering to
the ground.[28]
Second, Del Pilar’s revving of the motor of the boom “triggered the chain of
events – starting with the jerk, then followed by the swinging of the genset
which was obviously violent as it caused the body of the crane to tilt upward,
and ultimately, caused the boom with the genset to fall.”[29]
It would be a long stretch to construe these as acts of negligence. Not all
omissions can be considered as negligent. The test of negligence is as
follows:
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.[30]
Applying the test, the circumstances would show that the acts of the crane
operator were rational and justified.
Addressing Philam’s first submission, this Court finds that the records are
replete with explanations for why the boom of the crane had to be raised
from 75 to 78 degrees. Although the boom is already in the general area of
the genset’s storage place, still, it had to be raised three (3) degrees in order
to put it exactly in the proper designation. At 78 degrees, the genset could be
lowered straight down to the delivery/storage area.[31] DMCI’s crane operation
team determined accordingly that there was a need to raise the boom in
order to put the genset in the exact location. Indeed, the heavy equipment
must be secured in its proper place.
Proceeding to the more contentious claim, Philam emphasized the apparent
inconsistencies in Del Pilar’s narration. In his signed statement, executed 15
days after the incident, Del Pilar stated that when he raised the boom from
75 to 78 degrees, he revved the motor, upon which he felt the sudden
upward movement (jerk) of the boom followed by the swinging of the genset.
[32]
But in his affidavit, executed already during the trial, Del Pilar mentioned that
he moved the boom slowly when he raised it to 78 degrees.[33] Philam deems
this narration questionable since the “slow movement” was never mentioned
in Del Pilar’s earlier signed statement.[34]
Examining the signed statement and the affidavit of Del Pilar, petitioner
Philam inaccurately portrayed his narration.
In his signed statement, Del Pilar already mentioned that he slowly moved
the genset, and when it swayed, he waited for the swinging to stop before he
lifted the equipment:
Itinuloy ko na ang pag-angat ng genset at pagkatapos ng malagpas na sa
open top van container, dahan-dahan na ako nagpihit o swing papunta
sa kanan at pagkatapos ng nasa direksyon na ako ng paglalagyan,
itinigil ko ang pagpihit o pag swing pagkatapos hinintay ko ang
genset sa paggalaw at ng huminto na ang genset sa paggalaw,
nagboom up ako mula 75° hanggang 78°, sa tantya ko at noong mag
boom up, nag-rebolution (sic) ako at naramdaman ko na biglang
gumalaw paangat (paboom-up) ang boom ng Crane No. CR-81 at
nag-swing na naman patungo sa akin ang genset. At nang ito ay
umindayog papalayo sa crane ay doon ko naramdaman na iyong body ng
Crane No. CR-81 ay umangat at nakita kong tumumba ang boom ng Crane
CR-81 at bumagsak ang genset sa loob ng Citibank (sic) Parking Area. Noon
ika-16 ng Octubre 1993 ng oras na alas 4:55 ng umaga.” (Emphasis
supplied.)
In his affidavit, Del Pilar’s statements concentrated on the manner of lifting of
the genset. At this point, he recalled that the boom was raised slowly[35]:
T:  Papaano mo naitaas ang “boom” ng “crane” mula 75 digri hanggang 78
digri?
S:  Dahan-dahan lang po.
T:  Pagkatapos mong maitaas ang boom ng crane sa 78 digri, iyong
inumpisahan ibinaba ang “generator set” sa lupa subalit ito ay
nagumpisang umugoy-ugoy o dumuyan-duyan palabas at papasok ang
karga na “generator set” patungo sa akin. Ito ba ay tutuo?
S:   Opo. [36](Emphasis supplied.)
The affidavit, which the CA used as the main basis for its Decision, pertained
exactly to how the crane’s boom had been raised. It is only when a witness
makes two sworn statements, and these two statements incur the gravest
contradictions, that the court cannot accept both statements as proof.[37]
Logically, in order to raise the crane’s boom, the operator must step on the
pedal; else, the 13-ton genset would not be brought down. Philam did not
even present expert evidence to challenge the need of increasing the power
supply to move the boom.
Donato F. Solis, DMCI’s electrical engineer assigned to supervise and
coordinate the crane’s operations, corroborated Del Pilar’s description.  He
gave an eyewitness account of the incident, and his statements thereon were
taken by the surveyor, MASC. Solis said:
Q:   What happened when the genset was already lifted out and at the above
proposed storage area?
A:   After it was already at above the designated area, the genset was still
swinging during the time (at about 4:50 a.m., October 16, 1993) and when
the genset stopped swinging I noticed that it was being lowered slowly to the
ground and until approx. 6 feet above the ground. I noticed that it was not
being lowered because it was moving diagonally toward us. When it was
moving toward us we ran to avoid being hit by the genset.[38]
Even if Del Pilar failed to mention the slow manner of raising the boom in his
earlier signed statement, the reverse is not necessarily established. Persons
are easily liable to commit errors in the recollection of minute details of an
important occurrence.[39]
Alternatively, Philam asserts that if care was exercised in operating the crane,
and yet the genset was damaged, then it must have been the very crane
itself that was defective.[40]
We cannot give credence to mere conjectures and assumptions on the
condition of the crane to prove negligence. In Picart v. Smith, the Court
stressed that abstract speculations cannot be of much value:
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.[41]
The speculative assertion of Philam should be supported by specific evidence
of the crane’s defects. Instead, Philam utterly failed to contradict the findings
of MASC which made an actual site inspection to observe the crane used in
lifting the genset. In its Survey Certificate, it stated that: “[U]pon close
examination, the crane was observed in actual operation and found
to be in satisfactory working condition.”[42] (Emphasis supplied.)
Since Philam failed to convince us of actions that would lay the blame on
DMCI, this Court agrees with the CA that DMCI exercised the necessary care
and precaution in lifting the genset.
Firstly, a whole team was involved in transferring the genset. Petitioners did
not even the question the acts of the other team members involved in the
crane operations. Del Pilar stated thus:
T: Ikaw lang ba mag-isa ang magbababa ng nasabing “generator set”?
S:  Hindi po, ako po ay tinulungan ng isang katrabahong “rigger” na ang
pangalan ay si G. MARCELINO ROMERO, ng aming Foreman na si G.
FERNANDO DELA ROSA ng Motor Pool, isang mekaniko, at ni DONATO
SOLIS, isang ehenyero.
T:  Anu-ano tulong o ayuda ang naibigay sa iyo ng bawat isa sa mga taong iyong
nabanggit?
S:  Si G. MARCELINO ROMERO na isang “rigger” ay tumulong sa akin upang
maitali ang “generator set” sa kable ng “crane” at sa pagbibigay ng senyas sa
akin kung kailan itataas ang pagbuhat ng “generator set”, kung kailan
magaalalay sa pagtaas at mga iba pang bagay-bagay na may kinalaman sa
pagpapatakbo ng “crane”. Ang motor pool foreman ay nandoon naman upang
tingnan at subaybayan na lahat ng bagay pangkaligtasan sa pagbubuhat ng
crane sa “generator set” upang ito’y maibaba ng maayos. Si Ehenyero
DONATO SOLIS ay ang pangkalahatang nangangasiwa sa pagbubuhat o
paglalapag ng nasabing “generator set”. Ang mekaniko naman na hindi ko na
matandaan ang kanyang pangalan ay nandoon upang tumulong kung sakaling
magkakaroon ng suliranin pang-mekanikal ang “crane”.[43]
Secondly, as found by the CA,[44] Del Pilar exercised reasonable care and
caution when he tested the crane four times right before actual operations to
make sure that it could lift the genset. He stated further:
T:   Maari (sic) mo bang isalaysay ang buong pangyayari tungkol sa pagbuhat at
pagdiskarga ng genset mula sa open top van container na nasa trailer ng
ibabaw ng Marzan Trucking?
S:  Nang matalian po namin (ako at ang nasabing rigger man) ang genset,
pumunta na po ako sa operating cab ng Crane No. CR-81 pagkatapos
pinaandar ko ang Crane CR-81 para umpisahan iangat ang genset mula sa
open top container pagkatapos sinubukan ko ng buhatin ang genset at nang
 mabuhat ng isa o dalawang dangkal, ibinaba ko ito muli sa dating pwesto ng
maka-apat na beses.
T:  Bakit mo ibinaba ng apat na beses ang genset mula ng ito ay iangat mo?
S:  Sinisigurado ko ho na kaya ng Crane No. 81 ang bigat ng genset[.][45]
The testing of the crane during actual operations was corroborated by Solis
when he stated as follows:
Q:  What did you observe during the lifting operation?
evidence as to the precise cause of the accident, and with all the attendant
facts clearly present.[51] Finally, neither the presumption nor the doctrine
would apply when the circumstances have been so completely elucidated that
no inference of the defendant's liability can reasonably be made, whatever
the source of the evidence.[52]
Absent any finding of negligence, we sustain the CA’s findings that DMCI
exercised due diligence; that the event is an accident; and that consequently
Philam cannot claim damages for the damaged genset.[53] cralaw

A:  During the lifting operation, I noticed that it took awhile (approx. 30
IN VIEW THEREOF, the assailed 28 June 2004 Decision of the Court of
minutes) in lifting the genset, because the Crane Operator, Mr. Ariel del Pilar
Appeals and its 24 September 2004 Resolution are AFFIRMED. The 11
was testing the lifting capability of Crane No. CR-81. I saw the genset, which October 2004 Petition for Review filed by Philam Insurance Company, Inc.
was several times lifted about 1 foot high from the flooring of the open top and American Home Insurance Corporation is hereby denied for lack of merit.
van container.[46]
SO ORDERED
Thirdly, as can be gleaned from the statements above, Del Pilar stopped
turning the controls, and it was only when the swinging stopped that he
performed the next maneuver. All of these acts, as proven by the evidence,
showed due diligence in operating the crane.

In their final effort to reverse the appellate court, petitioners invoked res ipsa
loquitur, even if they never had raised this doctrine before the trial court.

According to petitioners, the requisites of res ipsa loquitur are present in this

case.[47] Had the principle been applied, the burden of proof in establishing
due diligence in operating the crane would have shifted to DMCI.[48]

In this case, res ipsa loquitur is not applicable, since there is direct

evidence[49] on the issue of diligence or lack thereof pertaining to the lifting of
the genset. The doctrine is not a rule of substantive law, but merely a mode
of proof or a mere procedural convenience.[50]

In any event, res ipsa loquitur merely provides a rebuttable presumption of

negligence. On this, we have already pointed out that the evidence does not
prove negligence on the part of DMCI, and that due diligence on its part has
been established.

Hence, it has generally been held that the presumption arising from the
doctrine cannot be availed of, or is overcome when the plaintiff has
knowledge and testifies or presents evidence as to the specific act of
negligence that caused the injury complained of; or when there is direct