1

G.R. No. L-65295 March 10, 1987

PHOENIX CONSTRUCTION, INC. and ARMANDO
U.
CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and
LEONARDO DIONISIO, respondents.

FELICIANO, J:
In the early morning of 15 November 1975 at about
1:30 a.m. private respondent Leonardo Dionisio
was on his way home he lived in 1214-B Zamora
Street, Bangkal, Makati from a cocktails-and-dinner
meeting with his boss, the general manager of a
marketing corporation. During the cocktails phase of
the evening, Dionisio had taken "a shot or two" of
liquor. Dionisio was driving his Volkswagen car and
had just crossed the intersection of General Lacuna
and General Santos Streets at Bangkal, Makati, not
far from his home, and was proceeding down General
Lacuna Street, when his car headlights (in his
allegation) suddenly failed. He switched his headlights
on "bright" and thereupon he saw a Ford dump truck
looming some 2-1/2 meters away from his car. The
dump truck, owned by and registered in the name of
petitioner Phoenix Construction Inc. ("Phoenix"), was
parked on the right hand side of General Lacuna
Street (i.e., on the right hand side of a person facing
in the same direction toward which Dionisio's car was
proceeding), facing the oncoming traffic. The dump
truck was parked askew (not parallel to the street
curb) in such a manner as to stick out onto the street,
partly blocking the way of oncoming traffic. There
were no lights nor any so-called "early warning"
reflector devices set anywhere near the dump truck,
front or rear. The dump truck had earlier that evening
been driven home by petitioner Armando U. Carbonel,
its regular driver, with the permission of his employer
Phoenix, in view of work scheduled to be carried out
early the following morning, Dionisio claimed that he
tried to avoid a collision by swerving his car to the left
but it was too late and his car smashed into the dump
truck. As a result of the collision, Dionisio suffered
some physical injuries including some permanent
facial scars, a "nervous breakdown" and loss of two
gold bridge dentures.

Dionisio commenced an action for damages in the

Court of First Instance of Pampanga basically
claiming that the legal and proximate cause of his
injuries was the negligent manner in which Carbonel
had parked the dump truck entrusted to him by his
employer Phoenix. Phoenix and Carbonel, on the
other hand, countered that the proximate cause of
Dionisio's injuries was his own recklessness in driving
fast at the time of the accident, while under the
influence of liquor, without his headlights on and
without a curfew pass. Phoenix also sought to
establish that it had exercised due rare in the
selection and supervision of the dump truck driver.
The trial court rendered judgment in favor of Dionisio
and against Phoenix and Carbonel and ordered the
latter:
(1) To pay plaintiff jointly and severally
the sum of P 15,000.00 for hospital
bills and the replacement of the lost
dentures of plaintiff;
(2) To pay plaintiff jointly and severally
the sum of P 1,50,000.-00 as loss of
expected income for plaintiff brought
about the accident in controversy and
which is the result of the negligence of
the defendants;
(3) To pay the plaintiff jointly and
severally the sum of P 10,000. as
moral damages for the unexpected
and sudden withdrawal of plaintiff from
his lifetime career as a marketing
man; mental anguish, wounded
feeling,
serious
anxiety,
social
humiliation, besmirched reputation,
feeling of economic insecurity, and the
untold sorrows and frustration in life
experienced by plaintiff and his family
since the accident in controversy up to
the present time;
(4) To pay plaintiff jointly and severally
the sum of P 10,000.00 as damages
for the wanton disregard of defendants
to settle amicably this case with the

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plaintiff before the filing of this case in
court for a smaller amount.
(5) To pay the plaintiff jointly and
severally the sum of P 4,500.00 due
as and for attorney's fees; and
(6) The cost of
supplied)

The
award
of P10,000.00 as
exemplary
damages
and P4,500.00 as
attorney's fees and
costs
remained
untouched.

suit. (Emphasis

Phoenix and Carbonel appealed to the Intermediate

Appellate Court. That court in CA-G.R. No. 65476
affirmed the decision of the trial court but modified the
award of damages to the following extent:
1. The award of
P15,000.00
as
compensatory
damages was reduced
to P6,460.71, the latter
being the only amount
that the appellate court
found the plaintiff to
have
proved
as
actually sustained by
him;
2. The award of
P150,000.00 as loss of
expected income was
reduced
to P100,000.00,basical
ly because Dionisio
had
voluntarily
resigned his job such
that, in the opinion of
the appellate court, his
loss of income "was
not solely attributable
to the accident in
question;" and
3. The award of
P100,000.00 as moral
damages was held by
the appellate court as
excessive
and
unconscionable
and
hence
reduced
to P50,000.00.

This decision of the Intermediate Appellate Court is

now before us on a petition for review.
Both the trial court and the appellate court had made
fairly explicit findings of fact relating to the manner in
which the dump truck was parked along General
Lacuna Street on the basis of which both courts drew
the inference that there was negligence on the part of
Carbonel, the dump truck driver, and that this
negligence was the proximate cause of the accident
and Dionisio's injuries. We note, however, that both
courts failed to pass upon the defense raised by
Carbonel and Phoenix that the true legal and
proximate cause of the accident was not the way in
which the dump truck had been parked but rather the
reckless way in which Dionisio had driven his car that
night when he smashed into the dump truck. The
Intermediate Appellate Court in its questioned
decision casually conceded that Dionisio was "in
some way, negligent" but apparently failed to see the
relevance of Dionisio's negligence and made no
further mention of it. We have examined the record
both before the trial court and the Intermediate
Appellate Court and we find that both parties had
placed into the record sufficient evidence on the basis
of which the trial court and the appellate court could
have and should have made findings of fact relating to
the alleged reckless manner in which Dionisio drove
his car that night. The petitioners Phoenix and
Carbonel contend that if there was negligence in the
manner in which the dump truck was parked, that
negligence was merely a "passive and static
condition" and that private respondent Dionisio's
recklessness constituted an intervening, efficient
cause determinative of the accident and the injuries
he sustained. The need to administer substantial
justice as between the parties in this case, without
having to remand it back to the trial court after eleven
years, compels us to address directly the contention
put forward by the petitioners and to examine for
ourselves the record pertaining to Dionisio's alleged

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negligence which must bear upon the liability, or
extent of liability, of Phoenix and Carbonel.
There are four factual issues that need to be looked
into: (a) whether or not private respondent Dionisio
had a curfew pass valid and effective for that eventful
night; (b) whether Dionisio was driving fast or
speeding just before the collision with the dump truck;
(c) whether Dionisio had purposely turned off his car's
headlights before contact with the dump truck or
whether those headlights accidentally malfunctioned
moments before the collision; and (d) whether
Dionisio was intoxicated at the time of the accident.
As to the first issue relating to the curfew pass, it is
clear that no curfew pass was found on the person of
Dionisio immediately after the accident nor was any
found in his car. Phoenix's evidence here consisted of
the testimony of Patrolman Cuyno who had taken
Dionisio, unconscious, to the Makati Medical Center
for emergency treatment immediately after the
accident. At the Makati Medical Center, a nurse took
off Dionisio's clothes and examined them along with
the contents of pockets together with Patrolman
Cuyno. 1 Private respondent Dionisio was not able to
produce any curfew pass during the trial. Instead, he
offered the explanation that his family may have
misplaced his curfew pass. He also offered a
certification (dated two years after the accident)
issued by one Major Benjamin N. Libarnes of the
Zone Integrated Police Intelligence Unit of Camp
Olivas, San Fernando, Pampanga, which was said to
have authority to issue curfew passes for Pampanga
and Metro Manila. This certification was to the effect
that private respondent Dionisio had a valid curfew
pass. This certification did not, however, specify any
pass serial number or date or period of effectivity of
the supposed curfew pass. We find that private
respondent Dionisio was unable to prove possession
of a valid curfew pass during the night of the accident
and that the preponderance of evidence shows that
he did not have such a pass during that night. The
relevance of possession or non-possession of a
curfew pass that night lies in the light it tends to shed
on the other related issues: whether Dionisio was
speeding home and whether he had indeed purposely
put out his headlights before the accident, in order to
avoid detection and possibly arrest by the police in
the nearby police station for travelling after the onset
of curfew without a valid curfew pass.

On the second issue whether or not Dionisio was

speeding home that night both the trial court and
the appellate court were completely silent.
The defendants in the trial court introduced the
testimony of Patrolman Cuyno who was at the scene
of the accident almost immediately after it occurred,
the police station where he was based being barely
200 meters away. Patrolman Cuyno testified that
people who had gathered at the scene of the accident
told him that Dionisio's car was "moving fast" and did
not have its headlights on. 2 Dionisio, on the other
hand, claimed that he was travelling at a moderate
speed at 30 kilometers per hour and had just crossed
the intersection of General Santos and General
Lacuna Streets and had started to accelerate when
his headlights failed just before the collision took
place. 3
Private respondent Dionisio asserts that Patrolman
Cuyno's testimony was hearsay and did not fag within
any of the recognized exceptions to the hearsay rule
since the facts he testified to were not acquired by
him through official information and had not been
given by the informants pursuant to any duty to do so.
Private respondent's objection fails to take account of
the fact that the testimony of Patrolman Cuyno is
admissible not under the official records exception to
the hearsay rule 4 but rather as part of the res
gestae. 5 Testimonial evidence under this exception to
the hearsay rule consists of excited utterances made
on the occasion of an occurrence or event sufficiently
startling in nature so as to render inoperative the
normal reflective thought processes of the observer
and hence made as a spontaneous reaction to the
occurrence or event, and not the result of reflective
thought. 6
We think that an automobile speeding down a street
and suddenly smashing into a stationary object in the
dead of night is a sufficiently startling event as to
evoke spontaneous, rather than reflective, reactions
from observers who happened to be around at that
time. The testimony of Patrolman Cuyno was
therefore admissible as part of the res gestae and
should have been considered by the trial court.
Clearly, substantial weight should have been ascribed
to such testimony, even though it did not, as it could
not, have purported to describe quantitatively the

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precise velocity at winch Dionisio was travelling just
before impact with the Phoenix dump truck.

thus did not see the dump truck that was parked
askew and sticking out onto the road lane.

A third related issue is whether Dionisio purposely

turned off his headlights, or whether his headlights
accidentally malfunctioned, just moments before the
accident. The Intermediate Appellate Court expressly
found that the headlights of Dionisio's car went off as
he crossed the intersection but was non-committal as
to why they did so. It is the petitioners' contention that
Dionisio purposely shut off his headlights even before
he reached the intersection so as not to be detected
by the police in the police precinct which he (being a
resident in the area) knew was not far away from the
intersection. We believe that the petitioners' theory is
a more credible explanation than that offered by
private respondent Dionisio i.e., that he had his
headlights on but that, at the crucial moment, these
had in some mysterious if convenient way
malfunctioned and gone off, although he succeeded
in switching his lights on again at "bright" split
seconds before contact with the dump truck.

Nonetheless, we agree with the Court of First

Instance and the Intermediate Appellate Court that the
legal and proximate cause of the accident and of
Dionisio's injuries was the wrongful or negligent
manner in which the dump truck was parked in other
words, the negligence of petitioner Carbonel. That
there was a reasonable relationship between
petitioner Carbonel's negligence on the one hand and
the accident and respondent's injuries on the other
hand, is quite clear. Put in a slightly different manner,
the collision of Dionisio's car with the dump truck was
a natural and foreseeable consequence of the truck
driver's negligence.

A fourth and final issue relates to whether Dionisio

was intoxicated at the time of the accident. The
evidence here consisted of the testimony of
Patrolman Cuyno to the effect that private respondent
Dionisio smelled of liquor at the time he was taken
from his smashed car and brought to the Makati
Medical Center in an unconscious condition. 7 This
testimony has to be taken in conjunction with the
admission of Dionisio that he had taken "a shot or
two" of liquor before dinner with his boss that night.
We do not believe that this evidence is sufficient to
show that Dionisio was so heavily under the influence
of liquor as to constitute his driving a motor vehicle
per se an act of reckless imprudence. 8There simply is
not enough evidence to show how much liquor he had
in fact taken and the effects of that upon his physical
faculties or upon his judgment or mental alertness.
We are also aware that "one shot or two" of hard
liquor may affect different people differently.
The conclusion we draw from the factual
circumstances outlined above is that private
respondent Dionisio was negligent the night of the
accident. He was hurrying home that night and driving
faster than he should have been. Worse, he
extinguished his headlights at or near the intersection
of General Lacuna and General Santos Streets and

The petitioners, however, urge that the truck driver's

negligence was merely a "passive and static
condition" and that private respondent Dionisio's
negligence was an "efficient intervening cause and
that consequently Dionisio's negligence must be
regarded as the legal and proximate cause of the
accident rather than the earlier negligence of
Carbonel. We note that the petitioners' arguments are
drawn from a reading of some of the older cases in
various jurisdictions in the United States but we are
unable to persuade ourselves that these arguments
have any validity for our jurisdiction. We note, firstly,
that even in the United States, the distinctions
between "cause" and "condition" which the 'petitioners
would have us adopt have already been "almost
entirely discredited." Professors and Keeton make this
quite clear:
Cause and condition. Many courts
have sought to distinguish between
the active "cause" of the harm and the
existing "conditions" upon which that
cause operated. If the defendant has
created only a passive static condition
which made the damage possible, the
defendant is said not to be liable. But
so far as the fact of causation is
concerned, in the sense of necessary
antecedents which have played an
important part in producing the result
it is quite impossible to distinguish
between active forces and passive
situations, particularly since, as is

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invariably the case, the latter are the
result of other active forces which
have gone before. The defendant who
spills gasoline about the premises
creates a "condition," but the act may
be culpable because of the danger of
fire. When a spark ignites the
gasoline, the condition has done quite
as much to bring about the fire as the
spark; and since that is the very risk
which the defendant has created, the
defendant
will
not
escape
responsibility. Even the lapse of a
considerable time during which the
"condition" remains static will not
necessarily affect liability; one who
digs a trench in the highway may still
be liable to another who fans into it a
month
afterward. "Cause"
and
"condition"
still
find
occasional
mention in the decisions; but the
distinction is now almost entirely
discredited. So far as it has any
validity at all, it must refer to the type
of case where the forces set in
operation by the defendant have come
to rest in a position of apparent safety,
and some new force intervenes. But
even in such cases, it is not the
distinction between "cause" and
"condition" which is important but the
nature of the risk and the character of
the intervening cause. 9
We believe, secondly, that the truck driver's
negligence far from being a "passive and static
condition" was rather an indispensable and efficient
cause. The collision between the dump truck and the
private respondent's car would in an probability not
have occurred had the dump truck not been parked
askew without any warning lights or reflector devices.
The improper parking of the dump truck created an
unreasonable risk of injury for anyone driving down
General Lacuna Street and for having so created this
risk, the truck driver must be held responsible. In our
view, Dionisio's negligence, although later in point of
time than the truck driver's negligence and therefore
closer to the accident, was not an efficient intervening
or independent cause. What the Petitioners describe
as an "intervening cause" was no more than a

foreseeable consequent manner which the truck

driver had parked the dump truck. In other words, the
petitioner truck driver owed a duty to private
respondent Dionisio and others similarly situated not
to impose upon them the very risk the truck driver had
created. Dionisio's negligence was not of an
independent and overpowering nature as to cut, as it
were, the chain of causation in fact between the
improper parking of the dump truck and the accident,
nor to sever the juris vinculum of liability. It is helpful
to quote once more from Professor and Keeton:
Foreseeable Intervening Causes. If
the intervening cause is one which in
ordinary
human
experience
is
reasonably to be anticipated or one
which the defendant has reason to
anticipate
under
the
particular
circumstances, the defendant may be
negligence among other reasons,
because of failure to guard against it;
or the defendant may be negligent
only for that reason. Thus one who
sets a fire may be required to foresee
that an ordinary, usual and customary
wind arising later wig spread it beyond
the defendant's own property, and
therefore to take precautions to
prevent that event. The person who
leaves the combustible or explosive
material exposed in a public place
may foresee the risk of fire from some
independent source. ... In all of these
cases there is an intervening cause
combining with the defendant's
conduct to produce the result and in
each case the defendant's negligence
consists in failure to protect the
plaintiff against that very risk.
Obviously the defendant cannot be
relieved from liability by the fact that
the risk or a substantial and important
part of the risk, to which the defendant
has subjected the plaintiff has indeed
come
to
pass.
Foreseeable
intervening forces are within the
scope original risk, and hence of the
defendant's negligence. The courts
are quite generally agreed that

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intervening causes which fall fairly in
this category will not supersede the
defendant's responsibility.
Thus it has been held that a defendant
will be required to anticipate the usual
weather of the vicinity, including all
ordinary forces of nature such as
usual wind or rain, or snow or frost or
fog or even lightning; that one who
leaves an obstruction on the road or a
railroad track should foresee that a
vehicle or a train will run into it; ...
The risk created by the defendant
may include the intervention of the
foreseeable negligence of others. ...
[The standard of reasonable conduct
may require the defendant to protect
the plaintiff against 'that occasional
negligence which is one of the
ordinary incidents of human life, and
therefore to be anticipated.' Thus, a
defendant who blocks the sidewalk
and forces the plaintiff to walk in a
street where the plaintiff will be
exposed to the risks of heavy traffic
becomes liable when the plaintiff is
run down by a car, even though the
car is negligently driven; and one who
parks an automobile on the highway
without lights at night is not relieved of
responsibility
when
another
negligently drives into it. --- 10
We hold that private respondent Dionisio's negligence
was "only contributory," that the "immediate and
proximate cause" of the injury remained the truck
driver's "lack of due care" and that consequently
respondent Dionisio may recover damages though
such damages are subject to mitigation by the courts
(Article 2179, Civil Code of the Philippines).
Petitioners also ask us to apply what they refer to as
the "last clear chance" doctrine. The theory here of
petitioners is that while the petitioner truck driver was
negligent, private respondent Dionisio had the "last
clear chance" of avoiding the accident and hence his
injuries, and that Dionisio having failed to take that
"last clear chance" must bear his own injuries alone.

The last clear chance doctrine of the common law

was imported into our jurisdiction by Picart vs.
Smith 11 but it is a matter for debate whether, or to
what extent, it has found its way into the Civil Code of
the Philippines. The historical function of that doctrine
in the common law was to mitigate the harshness of
another common law doctrine or rule that of
contributory negligence. 12 The common law rule of
contributory negligence prevented any recovery at all
by a plaintiff who was also negligent, even if the
plaintiff's negligence was relatively minor as
compared with the wrongful act or omission of the
defendant. 13 The common law notion of last clear
chance permitted courts to grant recovery to a plaintiff
who had also been negligent provided that the
defendant had the last clear chance to avoid the
casualty and failed to do so. 14 Accordingly, it is
difficult to see what role, if any, the common law last
clear chance doctrine has to play in a jurisdiction
where the common law concept of contributory
negligence as an absolute bar to recovery by the
plaintiff, has itself been rejected, as it has been in
Article 2179 of the Civil Code of the Philippines. 15
Is there perhaps a general concept of "last clear
chance" that may be extracted from its common law
matrix and utilized as a general rule in negligence
cases in a civil law jurisdiction like ours? We do not
believe so. Under Article 2179, the task of a court, in
technical terms, is to determine whose negligence
the plaintiff's or the defendant's was the legal or
proximate cause of the injury. That task is not simply
or even primarily an exercise in chronology or
physics, as the petitioners seem to imply by the use of
terms like "last" or "intervening" or "immediate." The
relative location in the continuum of time of the
plaintiff's and the defendant's negligent acts or
omissions, is only one of the relevant factors that may
be taken into account. Of more fundamental
importance are the nature of the negligent act or
omission of each party and the character and gravity
of the risks created by such act or omission for the
rest of the community. The petitioners urge that the
truck driver (and therefore his employer) should be
absolved from responsibility for his own prior
negligence because the unfortunate plaintiff failed to
act with that increased diligence which had become
necessary to avoid the peril precisely created by the
truck driver's own wrongful act or omission. To accept
this proposition is to come too close to wiping out the

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fundamental principle of law that a man must respond
for the forseeable consequences of his own negligent
act or omission. Our law on quasi-delicts seeks to
reduce the risks and burdens of living in society and
to allocate them among the members of society. To
accept the petitioners' pro-position must tend to
weaken the very bonds of society.
Petitioner Carbonel's proven negligence creates a
presumption of negligence on the part of his employer
Phoenix16 in supervising its employees properly and
adequately. The respondent appellate court in effect
found, correctly in our opinion, that Phoenix was not
able to overcome this presumption of negligence. The
circumstance that Phoenix had allowed its truck driver
to bring the dump truck to his home whenever there
was work to be done early the following morning,
when coupled with the failure to show any effort on
the part of Phoenix to supervise the manner in which
the dump truck is parked when away from company
premises, is an affirmative showing of culpa in
vigilando on the part of Phoenix.
Turning to the award of damages and taking into
account the comparative negligence of private
respondent Dionisio on one hand and petitioners
Carbonel and Phoenix upon the other hand, 17 we
believe that the demands of substantial justice are
satisfied by allocating most of the damages on a 2080 ratio. Thus, 20% of the damages awarded by the
respondent appellate court, except the award of
P10,000.00 as exemplary damages and P4,500.00 as
attorney's fees and costs, shall be borne by private
respondent Dionisio; only the balance of 80% needs
to be paid by petitioners Carbonel and Phoenix who
shall be solidarity liable therefor to the former. The
award of exemplary damages and attorney's fees and
costs shall be borne exclusively by the petitioners.
Phoenix is of course entitled to reimbursement from
Carbonel. 18 We see no sufficient reason for
disturbing the reduced award of damages made by
the respondent appellate court.
WHEREFORE, the decision of the respondent
appellate court is modified by reducing the aggregate
amount of compensatory damages, loss of expected
income and moral damages private respondent
Dionisio is entitled to by 20% of such amount. Costs
against the petitioners.

SO ORDERED.

G.R. Nos. 103442-45 May 21, 1993

NATIONAL POWER CORPORATION, ET
AL., petitioners,
vs.
THE COURT OF APPEALS, GAUDENCIO C. RAYO,
ET AL., respondents.
The Solicitor General for plaintiff-appellee.
Ponciano G. Hernandez for private respondents.

DAVIDE, JR., J.:

This is a petition for review on certiorari under Rule 45
of the Revised Rules of Court urging this Court to set
aside the 19 August 1991 consolidated Decision of
the Court of Appeals in CA.-G.R. CV Nos. 2729093 1 which reversed the Decision of Branch 5 of the
then Court of First Instance (now Regional Trial Court)
of Bulacan, and held petitioners National Power
Corporation (NPC) and Benjamin Chavez jointly and
severally liable to the private respondents for actual
and moral damages, litigation expenses and
attorney's fees.
This present controversy traces its beginnings to four
(4) separate complaints 2 for damages filed against
the NPC and Benjamin Chavez before the trial court.
The plaintiffs therein, now private respondents,
sought to recover actual and other damages for the
loss of lives and the destruction to property caused by
the inundation of the town of Norzagaray, Bulacan on
26-27 October 1978. The flooding was purportedly
caused by the negligent release by the defendants of
water through the spillways of the Angat Dam
(Hydroelectric Plant). In said complaints, the plaintiffs
alleged, inter alia, that: 1) defendant NPC operated
and maintained a multi-purpose hydroelectric plant in
the Angat River at Hilltop, Norzagaray, Bulacan; 2)
defendant Benjamin Chavez was the plant supervisor
at the time of the incident in question; 3) despite the
defendants' knowledge, as early as 24 October 1978,
of the impending entry of typhoon "Kading," they
failed to exercise due diligence in monitoring the

8
water level at the dam; 4) when the said water level
went beyond the maximum allowable limit at the
height of the typhoon, the defendants suddenly,
negligently and recklessly opened three (3) of the
dam's spillways, thereby releasing a large amount of
water which inundated the banks of the Angat River;
and 5) as a consequence, members of the household
of the plaintiffs, together with their animals, drowned,
and their properties were washed away in the evening
of 26 October and the early hours of 27 October
1978. 3
In their Answers, the defendants, now petitioners,
alleged that: 1) the NPC exercised due care, diligence
and prudence in the operation and maintenance of
the hydroelectric plant; 2) the NPC exercised the
diligence of a good father in the selection of its
employees; 3) written notices were sent to the
different municipalities of Bulacan warning the
residents therein about the impending release of a
large volume of water with the onset of typhoon
"Kading" and advise them to take the necessary
precautions; 4) the water released during the typhoon
was needed to prevent the collapse of the dam and
avoid greater damage to people and property; 5) in
spite of the precautions undertaken and the diligence
exercised, they could still not contain or control the
flood that resulted and; 6) the damages incurred by
the private respondents were caused by a fortuitous
event or force majeure and are in the nature and
character of damnum absque injuria. By way of
special affirmative defense, the defendants averred
that the NPC cannot be sued because it performs a
purely governmental function. 4
Upon motion of the defendants, a preliminary hearing
on the special defense was conducted. As a result
thereof, the trial court dismissed the complaints as
against the NPC on the ground that the provision of
its charter allowing it to sue and be sued does not
contemplate actions based on tort. The parties do not,
however, dispute the fact that this Court overruled the
trial court and ordered the reinstatement of the
complaints as against the NPC. 5

credible evidence." 6 Consequently, the private

respondents seasonably appealed therefrom to the
respondent Court which then docketed the cases as
CA-G.R. CV Nos. 27290-93.
In its joint decision promulgated on 19 August 1991,
the Court of Appeals reversed the appealed decision
and awarded damages in favor of the private
respondents. The dispositive portion of the decision
reads:
CONFORMABLY TO THE
FOREGOING, the joint decision
appealed from is hereby REVERSED
and SET ASIDE, and a new one is
hereby rendered:
1. In Civil Case No. SM-950, ordering
defendants-appellees to pay, jointly
and severally, plaintiffs-appellants,
with legal interest from the date when
this decision shall become final and
executory, the following:
A. Actual damages, to wit:
1) Gaudencio C. Rayo,
Two Hundred Thirty
One Thousand Two
Hundred Sixty Pesos
(P231,260.00);
2) Bienvenido P.
Pascual, Two Hundred
Four Thousand Five
Hundred Pesos
(P204.500.00);
3) Tomas Manuel, One
Hundred Fifty Five
Thousand Pesos
(P155,000.00);

Being closely interrelated, the cases were

consolidated and trial thereafter ensued.

4) Pedro C. Bartolome,
One Hundred Forty
Seven Thousand
Pesos (P147,000.00);.

The lower court rendered its decision on 30 April 1990

dismissing the complaints "for lack of sufficient and

5) Bernardino Cruz,
One Hundred Forty

9
Three Thousand Five
Hundred Fifty Two
Pesos and Fifty
Centavos
(P143,552.50);

A. Plaintiff-appellant Angel C. Torres:

6) Jose Palad, Fifty

Seven Thousand Five
Hundred Pesos
(P57,500.00);

2) Moral Damages of One Hundred

Fifty Thousand Pesos (P150,000.00);

7) Mariano S. Cruz,
Forty Thousand Pesos
(P40,000.00);

1) Actual damages of Fifty Thousand

Pesos (P50,000.00);

8) Lucio Fajardo,
Twenty nine Thousand
Eighty Pesos
(P29,080.00); and

1) Actual damages of One Hundred

Ninety Nine Thousand One Hundred
Twenty Pesos (P199,120.00);

B. Plaintiff-appellant Norberto Torres:

2) Moral damages of Fifty Thousand

Pesos (P50,000.00);
C. Plaintiff-appellant Rodelio Joaquin:

B. Litigation expenses of Ten

Thousand Pesos (P10,000.00);

1) Actual damages of
One Hundred
Thousand Pesos
(P100,000.00);

2. In Civil case No. SM-951, ordering

defendants-appellees to pay jointly
and severally, plaintiff-appellant, with
legal interest from the date when this
decision shall have become final and
executory, the following :

2) Moral damages of
One Hundred
Thousand Pesos
(P100,000.00); and

A. Actual damages of
Five Hundred Twenty
Thousand Pesos
(P520,000.00);.
B. Moral damages of
five hundred Thousand
Pesos (P500,000.00);
and.
C. Litigation expenses
of Ten Thousand
Pesos (P10,000.00);.
3. In Civil Case No. SM-953, ordering
defendants-appellees to pay, jointly
and severally, with legal interest from
the date when this decision shall have
become final and executory;

D. Plaintifsf-appellants litigation
expenses of Ten Thousand Pesos
(P10,000.00);
4. In Civil case No. SM-1247, ordering
defendants-appellees to pay, jointly
and severally, with legal interest from
the date when this decision shall have
become final and executory :
A. Plaintiffs-appellants Presentacion
Lorenzo and Clodualdo Lorenzo:
1) Actual damages of
Two Hundred Fifty Six
Thousand Six Hundred
Pesos (P256,600.00);

10
2) Moral damages of
Fifty Thousand Pesos
(P50,000.00);
B. Plaintiff-appellant Consolacion
Guzman :
1) Actual damages of
One Hundred forty
Thousand Pesos
(P140,000.00);
2) Moral damages of
Fifty Thousand Pesos
(P50,000.00);
C. Plaintiff-appellant Virginia Guzman :
1) Actual damages of
Two Hundred Five
Hundred Twenty
Pesos (205,520.00);
and
D. Plaintiffs-appellants litigation
expenses of Ten Thousand Pesos
(10,000.00).
In addition, in all the four (4) instant
cases, ordering defendants-appellees
to pay, jointly and severally, plaintiffsappellants attorney fees in an amount
equivalent to 15% of the total amount
awarded.
No pronouncement as to costs. 7
The foregoing judgment is based on the public
respondent's conclusion that the petitioners were
guilty of:
. . . a patent gross and evident lack of
foresight, imprudence and
negligence . . . in the management
and operation of Angat Dam. The
unholiness of the hour, the extent of
the opening of the spillways, And the
magnitude of the water released, are
all but products of defendantsappellees' headlessness,

slovenliness, and carelessness. The

resulting flash flood and inundation of
even areas (sic) one (1) kilometer
away from the Angat River bank would
have been avoided had defendantsappellees prepared the Angat Dam by
maintaining in the first place, a water
elevation which would allow room for
the expected torrential rains. 8
This conclusion, in turn, is anchored on its findings of
fact, to wit:
As early as October 21, 1978,
defendants-appellees knew of the
impending onslaught of and imminent
danger posed by typhoon "Kading".
For as alleged by defendantsappellees themselves, the coming of
said super typhoon was bannered
by Bulletin Today, a newspaper of
national circulation, on October 25,
1978, as "Super Howler to hit R.P."
The next day, October 26, 1978, said
typhoon once again merited a
headline in said newspaper as
"Kading's Big Blow expected this
afternoon" (Appellee's Brief, p. 6).
Apart from the newspapers,
defendants-appellees learned of
typhoon "Kading' through radio
announcements (Civil Case No. SM950, TSN, Benjamin Chavez,
December 4, 1984, pp. 7-9).
Defendants-appellees doubly knew
that the Angat Dam can safely hold a
normal maximum headwater elevation
of 217 meters (Appellee's brief, p. 12;
Civil Case No. SM-951, Exhibit "I-6";
Civil Case No. SM-953, Exhibit "J-6";
Civil Case No. SM-1247, Exhibit "G6").
Yet, despite such knowledge,
defendants-appellees maintained a
reservoir water elevation even beyond
its maximum and safe level, thereby
giving no sufficient allowance for the
reservoir to contain the rain water that

11
will inevitably be brought by the
coming typhoon.
On October 24, 1978, before typhoon
"Kading" entered the Philippine area
of responsibility, water elevation
ranged from 217.61 to 217.53, with
very little opening of the spillways,
ranging from 1/2 to 1 meter. On
October 25, 1978, when typhoon
"Kading" entered the Philippine area
of responsibility, and public storm
signal number one was hoisted over
Bulacan at 10:45 a.m., later raised to
number two at 4:45 p.m., and then to
number three at 10:45 p.m., water
elevation ranged from 217.47 to
217.57, with very little opening of the
spillways, ranging from 1/2 to 1 meter.
On October 26, 1978, when public
storm signal number three remained
hoisted over Bulacan, the water
elevation still remained at its
maximum level of 217.00 to 218.00
with very little opening of the spillways
ranging from 1/2 to 2 meters, until at
or about midnight, the spillways were
suddenly opened at 5 meters, then
increasing swiftly to 8, 10, 12, 12.5,
13, 13.5, 14, 14.5 in the early morning
hours of October 27, 1978, releasing
water at the rate of 4,500 cubic meters
per second, more or less. On October
27, 1978, water elevation remained at
a range of 218.30 to 217.05 (Civil
Case No. SM-950, Exhibits "D" and
series, "L", "M", "N", and "O" and
Exhibits "3" and "4"; Civil Case No.
SM-951, Exhibits "H" and "H-1"; Civil
Case No. SM-953, Exhibits "I" and "I1"; Civil Case No. SM 1247, Exhibits
"F" and "F-1").
xxx xxx xxx
From the mass of evidence extant in
the record, We are convinced, and so
hold that the flash flood on October
27, 1978, was caused not by rain
waters (sic), but by stored waters (sic)

suddenly and simultaneously released

from the Angat Dam by defendantsappellees, particularly from midnight of
October 26, 1978 up to the morning
hours of October 27,
1978. 9
The appellate court rejected the petitioners' defense
that they had sent "early warning written notices" to
the towns of Norzagaray, Angat, Bustos, Plaridel,
Baliwag and Calumpit dated 24 October 1978 which
read:
TO ALL CONCERN (sic):
Please be informed that at present our
reservoir (dam) is full and that we
have been releasing water
intermittently for the past several days.
With the coming of typhoon "Rita"
(Kading) we expect to release greater
(sic) volume of water, if it pass (sic)
over our place.
In view of this kindly advise people
residing along Angat River to keep
alert and stay in safe places.

BENJAM
Power P
because:
Said notice was delivered to the
"towns of Bulacan" on October 26,
1978 by defendants-appellees driver,
Leonardo Nepomuceno (Civil Case
No. SM-950, TSN, Benjamin Chavez,
December 4, 1984, pp. 7-11 and TSN,
Leonardo Nepomuceno, March 7,
1985, pp. 10-12).
Said notice is ineffectual, insufficient
and inadequate for purposes of the
opening of the spillway gates at
midnight of October 26, 1978 and on
October 27, 1978. It did not prepare or
warn the persons so served, for the
volume of water to be released, which

12
turned out to be of such magnitude,
that residents near or along the Angat
River, even those one (1) kilometer
away, should have been advised to
evacuate. Said notice, addressed "TO
ALL CONCERN (sic)," was delivered
to a policeman (Civil Case No. SM950, pp. 10-12 and Exhibit "2-A") for
the municipality of Norzagaray. Said
notice was not thus addressed and
delivered to the proper and
responsible officials who could have
disseminated the warning to the
residents directly affected. As for the
municipality of Sta. Maria, where
plaintiffs-appellants in Civil Case No.
SM-1246 reside, said notice does not
appear to have been served. 11
Relying on Juan F. Nakpil & Sons vs. Court of
Appeals, 12 public respondent rejected the petitioners'
plea that the incident in question was caused by force
majeure and that they are, therefore, not liable to the
private respondents for any kind of damage such
damage being in the nature of damnum absque
injuria.
The motion for reconsideration filed by the petitioners,
as well as the motion to modify judgment filed by the
public respondents, 13 were denied by the public
respondent in its Resolution of 27 December 1991. 14
Petitioners thus filed the instant petition on 21
February 1992.
After the Comment to the petition was filed by the
private respondents and the Reply thereto was filed
by the petitioners, We gave due course to the petition
on 17 June 1992 and directed the parties to submit
their respective Memoranda, 15 which they
subsequently complied with.
The petitioners raised the following errors allegedly
committed by the respondent Court :
I. THE COURT OF APPEALS ERRED
IN APPLYING THE RULING
OF NAKPIL & SONS V. COURT OF
APPEALS AND HOLDING THAT

PETITIONERS WERE GUILTY OF

NEGLIGENCE.
II. THE COURT OF APPEALS ERRED
IN HOLDING THAT THE WRITTEN
NOTICES OF WARNING ISSUED BY
PETITIONERS WERE
INSUFFICIENT.
III. THE COURT OF APPEALS
ERRED IN HOLDING THAT THE
DAMAGE SUFFERED BY PRIVATE
RESPONDENTS WAS
NOT DAMNUM ABSQUE INJURIA.
IV. THE COURT OF APPEALS
ERRED IN NOT AWARDING THE
COUNTERCLAIM OF PETITIONERS
FOR ATTORNEY'S FEES AND
EXPENSES OF LITIGATION. 16
These same errors were raised by herein petitioners
in G.R. No. 96410, entitled National Power
Corporation, et al., vs. Court of Appeals, et
al., 17 which this Court decided on 3 July 1992. The
said case involved the very same incident subject of
the instant petition. In no uncertain terms, We
declared therein that the proximate cause of the loss
and damage sustained by the plaintiffs therein who
were similarly situated as the private respondents
herein was the negligence of the petitioners, and
that the 24 October 1978 "early warning notice"
supposedly sent to the affected municipalities, the
same notice involved in the case at bar, was
insufficient. We thus cannot now rule otherwise not
only because such a decision binds this Court with
respect to the cause of the inundation of the town of
Norzagaray, Bulacan on 26-27 October 1978 which
resulted in the loss of lives and the destruction to
property in both cases, but also because of the fact
that on the basis of its meticulous analysis and
evaluation of the evidence adduced by the parties in
the cases subject of CA-G.R. CV Nos. 27290-93,
public respondent found as conclusively established
that indeed, the petitioners were guilty of "patent
gross and evident lack of foresight, imprudence and
negligence in the management and operation of
Angat Dam," and that "the extent of the opening of the
spillways, and the magnitude of the water released,
are all but products of defendants-appellees'

13
headlessness, slovenliness, and carelessness." 18 Its
findings and conclusions are biding upon Us, there
being no showing of the existence of any of the
exceptions to the general rule that findings of fact of
the Court of Appeals are conclusive upon this
Court. 19 Elsewise stated, the challenged decision can
stand on its own merits independently of Our decision
in G.R. No. 96410. In any event, We reiterate here in
Our pronouncement in the latter case that Juan F.
Nakpil & Sons vs. Court of Appeals 20 is still good law
as far as the concurrent liability of an obligor in the
case of force majeure is concerned. In
the Nakpil case, We held:
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 moral
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). 21
Accordingly, petitioners cannot be heard to invoke the
act of God or force majeure to escape liability for the
loss or damage sustained by private respondents
since they, the petitioners, were guilty of negligence.
The event then was not occasioned exclusively by an
act of God or force majeure; a human factor
negligence or imprudence had intervened. The
effect then of the force majeure in question may be
deemed to have, even if only partly, resulted from the
participation of man. Thus, the whole occurrence was
thereby humanized, as it were, and removed from the
laws applicable to acts of God.
WHEREFORE, for want of merit, the instant petition is
hereby DISMISSED and the Consolidated Decision of
the Court of Appeals in CA-G.R. CV Nos. 27290-93 is
AFFIRMED, with costs against the petitioners.
SO ORDERED.

14
G.R. No. 101683 February 23, 1995
LBC AIR CARGO, INC. FERNANDO M. YU and
JAIME TANO, petitioners,
vs.
HON. COURT OF APPEALS, Fourth Division,
SHERWIN MONTEROLA y OYON-OYON,
represented by PATROCENIA GRONDIANO y
MONTEROLA, and PATROCENIA GRONDIANO y
MONTEROLA, respondents.

against Tano, along with Fernando Yu and LBC Air

Cargo Incorporated, for the recovery of damages. The
two cases were tried jointly by the Regional Trial
Court, Branch 29, of Surigao del Sur.
On 29 July 1990, the trial court dismissed both cases
on the ground that the proximate cause of the
"accident" was the negligence of deceased Rogelio
Monterola.
Private respondent appealed the dismissal of the civil
case to the Court of Appeals. On 18 July 1991, the
appellate court reversed the court a quo. It held:

VITUG, J.:
In this petition for review, the application of the
doctrines of "proximate cause" and "last clear chance"
is, once again, being put to test. The petition
questions the decision of the Court of Appeals, dated
18 July 1991, which has reversed that of the trial
court.
The case arose from a vehicular collision which
occurred at about 11:30 in the morning of 15
November 1987. Rogelio Monterola, a licensed driver,
was traveling on board his Suzuki motorcycle towards
Mangagoy on the right lane along a dusty national
road in Bislig, Surigao del Sur. At about the same
time, a cargo van of the LBC Air Cargo Incorporated,
driven by defendant Jaime Tano, Jr., was coming from
the opposite direction on its way to the Bislig Airport.
On board were passengers Fernando Yu, Manager of
LBC Air Cargo, and his son who was seated beside
Tano. When Tano was approaching the vicinity of the
airport road entrance on his left, he saw two vehicles
racing against each other from the opposite direction.
Tano stopped his vehicle and waited for the two
racing vehicles to pass by. The stirred cloud of dust
made visibility extremely bad. Instead of waiting for
the dust to settled, Tano started to make a sharp left
turn towards the airport road. When he was about to
reach the center of the right lane, the motorcycle
driven by Monterola suddenly emerged from the dust
and smashed head-on against the right side of the
LBC van. Monterola died from the severe injuries he
sustained.
A criminal case for "homicide thru reckless
imprudence" was filed against Tano. A civil suit was
likewise instituted by the heirs of deceased Monterola

WHEREFORE, the judgment

appealed from is REVERSED, and
another one is hereby rendered
ordering the defendants Jaime Tano
and LBC Air Cargo, Inc. to jointly and
severally pay the plaintiff Patrocinia
Monterola the following amounts:
To SHERWIN MONTEROLA:
1. Indemnity for the death of
Rogelio Monterola P50,000.00
2. For Moral damages P20,000.00
To PATROCINIA GRONDIANO Y
MONTEROLA:
3. Actual Damages P7,361.00
4. Hospitals & Burial Expenses
15,000.00
5. Attorneys' Fees and expenses
of Litigation 10,000.00
Plus the costs.
Actual payment of the aforementioned
amounts should however be reduced
to twenty (20%) percent.1
In the instant petition for review, petitioners contend
that

15
1. The Court of Appeals erred in
finding that Jaime Tano, Jr. was
negligent in the driving of his vehicle
and in failing to give a signal to
approaching vehicles of his intention
to make a left turn.
2. The Court of Appeals erred in not
finding that the proximate cause of the
accident was the victim's negligence
in the driving of his motorcycle in a
very fast speed and thus hitting the
petitioner's cargo van. 2
The issues raised are thus essentially factual. The
intrinsic merit of, as well as cogency in, the detailed
analyses made by the Court of Appeals in arriving at
its findings is at once apparent. Said the appellate
court:

A I could not see

because of the cloud
of dust.
Q And it was at this
juncture, when you
were to follow your
theory, when you
started your LBC van
again and swerved to
the left leading to the
Bislig airport?
A I did not enter
immediately the
airport, I waited the
dust to clear a little
before I drove.
xxx xxx xxx

That visibility was poor when Jaime

Tano made a left turn was admitted by
the latter.
Q When these two
vehicles passed by
your parked vehicle,
as you said, there
were clouds of dust,
did I get you right?
A Yes sir, the road was
dusty.
Q So much so that you
could no longer see
the vehicles from the
opposite direction
following these
vehicles?
A It is not clear, sir, so I
even turned on my left
signal and the
headlight.
Q What do you mean
by it was not clear, you
could not see the
incoming vehicles?

Q In other words when

you said that it was
slightly clear, you
would like to tell the
Honorable Court that
you could only clearly
see big vehicles . . .
but not small vehicles
like a motorcycle?
A I could see clearly
big vehicles but not
small vehicles like a
motorcycle.
Q Like the motorcycle
of Rogelio Monterola?
A Yes, sir. I could not
see clearly. (Tano, tsn,
April 18, 1989, pp. 2630) (p. 15, Appellant's
brief).
Tano should not have made a left turn
under the conditions admitted by him.
Under the Land Transportation and
Traffic Code, the driver of any vehicle
upon a highway, before starting,

16
stopping or turning from a direct line,
is called upon to first see that such
movement can be made in safety, and
whenever the operation of any other
vehicle approaching may be affected
by such movement, shall give a signal
plainly visible to the driver of such
other vehicles of the intention to make
such movement (Sec. 44, R.A. 4136,
as amended). This means that before
a driver turns from a direct line, in this
case to the left, the driver must first
see to it that there are no approaching
vehicles and, if there are, to make the
turn only if it can be made in safety, or
at the very least give a signal that is
plainly visible to the driver of such
other vehicle. Tano did neither in this
case, for he recklessly made a left turn
even as visibility was still very poor,
and thus failed to see the approaching
motorcycle and warn the latter, of his
intention to make a left turn. This is
plain and simple negligence.
In thus making the left turn, he placed
his vehicle directly at the path of the
motorcycle which, unaware of Tano's
intention to make a left turn, smashed
at Tano's vehicle. It was Tano's
negligence that created the risk or the
condition of danger that set into
operation the event that led to the
smashedup and untimely death of
Rogelio Monterola.
Rogelio Monterola's motorcycle would
not have hit the cargo van had Tano,
in operating it, not recklessly turned
left when visibility was still poor, and
instead observed the direct line of the
Land Transportation Code that before
doing so, he should first see to it that
such movement can be made in
safety, and that whenever any other
vehicle approaching may be affected
by such movement, should give a
signal plainly visible to the driver of
such other vehicle of the intention to
make such movement.

That Rogelio Monterola was running

fast despite poor visibility as
evidenced by the magnitude of the
damage to the vehicles is no defense.
His negligence would at most be
contributory (Article 2179, N.C.C.).
Having negligently created the
condition of danger, defendants may
not avoid liability by pointing to the
negligence of the former.
xxx xxx xxx
Tano's proven negligence created a
presumption of negligence on the part
of his employer, the LBC Air Cargo
Corporation, in supervising its
employees properly and adequately
(Phoenix Construction, Inc. vs.
Intermediate Appellate Court, supra),
which may only be destroyed by proof
of due diligence in the selection and
supervision of his employees to
prevent the damage (Article 2180,
N.C.C.). No such defense was
interposed by defendants in their
answer.
We, however, fail to see Fernando
Yu's liability as Manager of LBCMangagoy Branch Office, there being
no employer-employee relationship
between him and Jaime Tano who is a
driver of the LBC Air Cargo Inc. It was
held in Philippine Rabbit Bus Lines
Inc. et al. vs. Phil. American
Forwarders,Inc., 63 SCRA 231, that
the term "Manager" in Article 2180 is
used in the sense of "employer."
Hence, no tortuous or quasi-delictual
liability can be fastened on Fernando
Yu as branch manager of LBC Air
Cargo Inc.
Now for the amount of damages.
Aside from the indemnity for death
which has been pegged at P50,000.00
(Resolution En Banc, August 30,
1990, cited in People vs. Sazon, 189
SCRA 700), the evidence disclose that

17
as a result of the accident, Rogelio
Monterola's motorcycle was damaged,
the repair cost of which amounted to
P7,361.00 (Exh. E-1), for
hospitalization, wake and burial
expenses, plaintiff spent P15,000.00.
There is likewise no question that by
reason of Rogelio Monterola's
untimely death, his only child 14 years
old Sherwin Monterola, suffered
mental anguish, fright, serious anxiety,
wounded feelings and moral shock
that entitles him to moral damages
which we hereby fix at P20,000.00.
Because of defendants' refusal to
indemnify the plaintiff for his father's
death, the latter was compelled to
litigate and engage the services of
counsel. He is therefore entitled to an
additional amount of P10,000.00 for
attorney's fees and expenses of
litigation.
Considering, however, the contributory
negligence of Rogelio Monterola in
driving at a fast clip despite the fact
that the road was dusty, we reduce the
aggregate amount of damages to
which the plaintiff is entitled by twenty
per cent (Phoenix Construction Inc.
vs. Intermediate Appellate
Court,Supra). 3
From every indication, the proximate cause of the
accident was the negligence of Tano who, despite
extremely poor visibility, hastily executed a left turn
(towards the Bislig airport road entrance) without first
waiting for the dust to settle. It was this negligent act
of Tano, which had placed his vehicle (LBC van)
directly on the path of the motorcycle coming from the
opposite direction, that almost instantaneously
caused the collision to occur. Simple prudence
required him not to attempt to cross the other lane
until after it would have been safe from and clear of
any oncoming vehicle.
Petitioners poorly invoke the doctrine of "last clear
chance" (also referred to, at times, as "supervening
negligence" or as "discovered peril"). The doctrine, in
essence, is to the effect that where both parties are

negligent, but the negligent act of one

is appreciably later in time than that of the other, or
when it is impossible to determine whose fault or
negligence should be attributed to the incident, the
one who had the last clear opportunity to avoid the
impending harm and failed to do so is chargeable with
the consequences thereof (seePicart vs. Smith, 37
Phil. 809). Stated differently, the rule would also mean
that an antecedent negligence of a person does not
preclude the recovery of damages for supervening
negligence of, or bar a defense against the liability
sought by, another if the latter, who had the last fair
chance, could have avoided the impending harm by
the exercise of due diligence (Pantranco North
Express, Inc. vs. Baesa, 179 SCRA 384; Glan
People's Lumber and Hardware vs. Intermediate
Appellate Court, 173 SCRA 464).
In the case at bench, the victim was traveling along
the lane where he was rightly supposed to be. The
incident occurred in an instant. No appreciable time
had elapsed, from the moment Tano swerved to his
left to the actual impact; that could have afforded the
victim a last clear opportunity to avoid the collision.
It is true however, that the deceased was not all that
free from negligence in evidently speeding too closely
behind the vehicle he was following. We, therefore,
agree with the appellate court that there indeed was
contributory negligence on the victim's part that could
warrant a mitigation of petitioners liability for
damages.
WHEREFORE, the appealed decision is AFFIRMED.
Costs against petitioners.
SO ORDERED.
G.R. No. L-12986

March 31, 1966

THE SPOUSES BERNABE AFRICA and SOLEDAD

C. AFRICA, and the HEIRS OF DOMINGA
ONG,petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and
THE COURT OF APPEALS, respondents-appellees.
Ross, Selph, Carrascoso and Janda for the
respondents.
Bernabe Africa, etc. for the petitioners.

18
MAKALINTAL., J.:
This case is before us on a petition for review of the
decision of the Court of Appeals, which affirmed that
of the Court of First Instance of Manila dismissing
petitioners' second amended complaint against
respondents.
The action is for damages under Articles 1902 and
1903 of the old Civil Code. It appears that in the
afternoon of March 18, 1948 a fire broke out at the
Caltex service station at the corner of Antipolo street
and Rizal Avenue, Manila. It started while gasoline
was being hosed from a tank truck into the
underground storage, right at the opening of the
receiving tank where the nozzle of the hose was
inserted. The fire spread to and burned several
neighboring houses, including the personal properties
and effects inside them. Their owners, among them
petitioners here, sued respondents Caltex (Phil.), Inc.
and Mateo Boquiren, the first as alleged owner of the
station and the second as its agent in charge of
operation. Negligence on the part of both of them was
attributed as the cause of the fire.
The trial court and the Court of Appeals found that
petitioners failed to prove negligence and that
respondents had exercised due care in the premises
and with respect to the supervision of their
employees.
The first question before Us refers to the admissibility
of certain reports on the fire prepared by the Manila
Police and Fire Departments and by a certain Captain
Tinio of the Armed Forces of the Philippines. Portions
of the first two reports are as follows:
1. Police Department report:
Investigation disclosed that at about
4:00 P.M. March 18, 1948, while
Leandro Flores was transferring
gasoline from a tank truck, plate No.
T-5292 into the underground tank of
the Caltex Gasoline Station located at
the corner of Rizal Avenue and
Antipolo Street, this City, an unknown
Filipino lighted a cigarette and threw
the burning match stick near the main
valve of the said underground tank.

Due to the gasoline fumes, fire

suddenly blazed. Quick action of
Leandro Flores in pulling off the
gasoline hose connecting the truck
with the underground tank prevented a
terrific explosion. However, the flames
scattered due to the hose from which
the gasoline was spouting. It burned
the truck and the following
accessorias and residences.
2. The Fire Department report:
In connection with their allegation that the
premises was (sic) subleased for the
installation of a coca-cola and cigarette stand,
the complainants furnished this Office a copy
of a photograph taken during the fire and
which is submitted herewith. it appears in this
picture that there are in the premises a cocacola cooler and a rack which according to
information gathered in the neighborhood
contained cigarettes and matches, installed
between the gasoline pumps and the
underground tanks.
The report of Captain Tinio reproduced information
given by a certain Benito Morales regarding the
history of the gasoline station and what the chief of
the fire department had told him on the same subject.
The foregoing reports were ruled out as "double
hearsay" by the Court of Appeals and hence
inadmissible. This ruling is now assigned as error. It is
contended: first, that said reports were admitted by
the trial court without objection on the part of
respondents; secondly, that with respect to the police
report (Exhibit V-Africa) which appears signed by a
Detective Zapanta allegedly "for Salvador Capacillo,"
the latter was presented as witness but respondents
waived their right to cross-examine him although they
had the opportunity to do so; and thirdly, that in any
event the said reports are admissible as an exception
to the hearsay rule under section 35 of Rule 123, now
Rule 130.
The first contention is not borne out by the record.
The transcript of the hearing of September 17, 1953
(pp. 167-170) shows that the reports in question,
when offered as evidence, were objected to by

19
counsel for each of respondents on the ground that
they were hearsay and that they were "irrelevant,
immaterial and impertinent." Indeed, in the court's
resolution only Exhibits J, K, K-5 and X-6 were
admitted without objection; the admission of the
others, including the disputed ones, carried no such
explanation.
On the second point, although Detective Capacillo did
take the witness stand, he was not examined and he
did not testify as to the facts mentioned in his alleged
report (signed by Detective Zapanta). All he said was
that he was one of those who investigated "the
location of the fire and, if possible, gather witnesses
as to the occurrence, and that he brought the report
with him. There was nothing, therefore, on which he
need be cross-examined; and the contents of the
report, as to which he did not testify, did not thereby
become competent evidence. And even if he had
testified, his testimony would still have been
objectionable as far as information gathered by him
from third persons was concerned.
Petitioners maintain, however, that the reports in
themselves, that is, without further testimonial
evidence on their contents, fall within the scope of
section 35, Rule 123, which provides that "entries in
official records made in the performance of his duty
by a public officer of the Philippines, or by a person in
the performance of a duty specially enjoined by law,
are prima facie evidence of the facts therein stated."
There are three requisites for admissibility under the
rule just mentioned: (a) that the entry was made by a
public officer, or by another person specially enjoined
by law to do so; (b) that it was made by the public
officer in the performance of his duties, or by such
other person in the performance of a duty specially
enjoined by law; and (c) that the public officer or other
person had sufficient knowledge of the facts by him
stated, which must have been acquired by him
personally or through official information (Moran,
Comments on the Rules of Court, Vol. 3 [1957] p.
398).
Of the three requisites just stated, only the last need
be considered here. Obviously the material facts
recited in the reports as to the cause and
circumstances of the fire were not within the personal
knowledge of the officers who conducted the

investigation. Was knowledge of such facts, however,

acquired by them through official information? As to
some facts the sources thereof are not even
identified. Others are attributed to Leopoldo Medina,
referred to as an employee at the gas station were the
fire occurred; to Leandro Flores, driver of the tank
truck from which gasoline was being transferred at the
time to the underground tank of the station; and to
respondent Mateo Boquiren, who could not, according
to Exhibit V-Africa, give any reason as to the origin of
the fire. To qualify their statements as "official
information" acquired by the officers who prepared the
reports, the persons who made the statements not
only must have personal knowledge of the facts
stated but must have the duty to give such statements
for record.1
The reports in question do not constitute an exception
to the hearsay rule; the facts stated therein were not
acquired by the reporting officers through official
information, not having been given by the informants
pursuant to any duty to do so.
The next question is whether or not, without proof as
to the cause and origin of the fire, the doctrine of res
ipsa loquitur should apply so as to presume
negligence on the part of appellees. Both the trial
court and the appellate court refused to apply the
doctrine in the instant case on the grounds that "as to
(its) applicability ... in the Philippines, there seems to
he nothing definite," and that while the rules do not
prohibit its adoption in appropriate cases, "in the case
at bar, however, we find no practical use for such
doctrine." The question deserves more than such
summary dismissal. The doctrine has actually been
applied in this jurisdiction, in the case of Espiritu vs.
Philippine Power and Development Co. (CA-G.R. No.
3240-R, September 20, 1949), wherein the decision
of the Court of Appeals was penned by Mr. Justice
J.B.L. Reyes now a member of the Supreme Court.
The facts of that case are stated in the decision as
follows:
In the afternoon of May 5, 1946, while the
plaintiff-appellee and other companions were
loading grass between the municipalities of
Bay and Calauan, in the province of Laguna,
with clear weather and without any wind
blowing, an electric transmission wire,

20
installed and maintained by the defendant
Philippine Power and Development Co., Inc.
alongside the road, suddenly parted, and one
of the broken ends hit the head of the plaintiff
as he was about to board the truck. As a
result, plaintiff received the full shock of 4,400
volts carried by the wire and was knocked
unconscious to the ground. The electric
charge coursed through his body and caused
extensive and serious multiple burns from
skull to legs, leaving the bone exposed in
some parts and causing intense pain and
wounds that were not completely healed when
the case was tried on June 18, 1947, over one
year after the mishap.
The defendant therein disclaimed liability on the
ground that the plaintiff had failed to show any
specific act of negligence, but the appellate court
overruled the defense under the doctrine of res ipsa
loquitur. The court said:
The first point is directed against the
sufficiency of plaintiff's evidence to place
appellant on its defense. While it is the rule,
as contended by the appellant, that in case of
noncontractual negligence, or culpa aquiliana,
the burden of proof is on the plaintiff to
establish that the proximate cause of his injury
was the negligence of the defendant, it is also
a recognized principal that "where the thing
which caused injury, without fault of the
injured person, is under the exclusive control
of the defendant and the injury is such as in
the ordinary course of things does not occur if
he having such control use proper care, it
affords reasonable evidence, in the absence
of the explanation, that the injury arose from
defendant's want of care."
And the burden of evidence is shifted to him
to establish that he has observed due care
and diligence. (San Juan Light & Transit Co. v.
Requena, 244, U.S. 89, 56 L. ed. 680.) This
rule is known by the name of res ipsa
loquitur (the transaction speaks for itself), and
is peculiarly applicable to the case at bar,
where it is unquestioned that the plaintiff had
every right to be on the highway, and the
electric wire was under the sole control of

defendant company. In the ordinary course of

events, electric wires do not part suddenly in
fair weather and injure people, unless they are
subjected to unusual strain and stress or there
are defects in their installation, maintenance
and supervision; just as barrels do not
ordinarily roll out of the warehouse windows to
injure passersby, unless some one was
negligent. (Byrne v. Boadle, 2 H & Co. 722;
159 Eng. Reprint 299, the leading case that
established that rule). Consequently, in the
absence of contributory negligence (which is
admittedly not present), the fact that the wire
snapped suffices to raise a reasonable
presumption of negligence in its installation,
care and maintenance. Thereafter, as
observed by Chief Baron Pollock, "if there are
any facts inconsistent with negligence, it is for
the defendant to prove."
It is true of course that decisions of the Court of
Appeals do not lay down doctrines binding on the
Supreme Court, but we do not consider this a reason
for not applying the particular doctrine of res ipsa
loquitur in the case at bar. Gasoline is a highly
combustible material, in the storage and sale of which
extreme care must be taken. On the other hand, fire is
not considered a fortuitous event, as it arises almost
invariably from some act of man. A case strikingly
similar to the one before Us is Jones vs. Shell
Petroleum Corporation, et al., 171 So. 447:
Arthur O. Jones is the owner of a building in
the city of Hammon which in the year 1934
was leased to the Shell Petroleum
Corporation for a gasoline filling station. On
October 8, 1934, during the term of the lease,
while gasoline was being transferred from the
tank wagon, also operated by the Shell
Petroleum Corporation, to the underground
tank of the station, a fire started with resulting
damages to the building owned by Jones.
Alleging that the damages to his building
amounted to $516.95, Jones sued the Shell
Petroleum Corporation for the recovery of that
amount. The judge of the district court, after
hearing the testimony, concluded that plaintiff
was entitled to a recovery and rendered
judgment in his favor for $427.82. The Court
of Appeals for the First Circuit reversed this

21
judgment, on the ground the testimony failed
to show with reasonable certainty any
negligence on the part of the Shell Petroleum
Corporation or any of its agents or employees.
Plaintiff applied to this Court for a Writ of
Review which was granted, and the case is
now before us for decision.1wph1.t
In resolving the issue of negligence, the Supreme
Court of Louisiana held:
Plaintiff's petition contains two distinct charges
of negligence one relating to the cause of
the fire and the other relating to the spreading
of the gasoline about the filling station.
Other than an expert to assess the damages
caused plaintiff's building by the fire, no
witnesses were placed on the stand by the
defendant.
Taking up plaintiff's charge of negligence
relating to the cause of the fire, we find it
established by the record that the filling
station and the tank truck were under the
control of the defendant and operated by its
agents or employees. We further find from the
uncontradicted testimony of plaintiff's
witnesses that fire started in the underground
tank attached to the filling station while it was
being filled from the tank truck and while both
the tank and the truck were in charge of and
being operated by the agents or employees of
the defendant, extended to the hose and tank
truck, and was communicated from the
burning hose, tank truck, and escaping
gasoline to the building owned by the plaintiff.
Predicated on these circumstances and the
further circumstance of defendant's failure to
explain the cause of the fire or to show its lack
of knowledge of the cause, plaintiff has
evoked the doctrine of res ipsa loquitur. There
are many cases in which the doctrine may be
successfully invoked and this, we think, is one
of them.
Where the thing which caused the injury
complained of is shown to be under the
management of defendant or his servants and

the accident is such as in the ordinary course

of things does not happen if those who have
its management or control use proper care, it
affords reasonable evidence, in absence of
explanation by defendant, that the accident
arose from want of care. (45 C.J. #768, p.
1193).
This statement of the rule of res ipsa
loquitur has been widely approved and
adopted by the courts of last resort. Some of
the cases in this jurisdiction in which the
doctrine has been applied are the
following, viz.: Maus v. Broderick, 51 La. Ann.
1153, 25 So. 977; Hebert v. Lake Charles Ice,
etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A.
101, 100 Am. St. Rep. 505; Willis v. Vicksburg,
etc., R. Co., 115 La. 63, 38 So. 892; Bents v.
Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case
applies with equal force here. The gasoline station,
with all its appliances, equipment and employees,
was under the control of appellees. A fire occurred
therein and spread to and burned the neighboring
houses. The persons who knew or could have known
how the fire started were appellees and their
employees, but they gave no explanation thereof
whatsoever. It is a fair and reasonable inference that
the incident happened because of want of care.
In the report submitted by Captain Leoncio Mariano of
the Manila Police Department (Exh. X-1 Africa) the
following appears:
Investigation of the basic complaint disclosed
that the Caltex Gasoline Station complained of
occupies a lot approximately 10 m x 10 m at
the southwest corner of Rizal Avenue and
Antipolo. The location is within a very busy
business district near the Obrero Market, a
railroad crossing and very thickly populated
neighborhood where a great number of
people mill around t
until
gasoline

22
tever be theWactjvities of these peopleor
lighting a cigarette cannot be excluded and
this constitute a secondary hazard to its
operation which in turn endangers the entire
neighborhood to conflagration.
Furthermore, aside from precautions already
taken by its operator the concrete walls south
and west adjoining the neighborhood are only
2-1/2 meters high at most and cannot avoid
the flames from leaping over it in case of fire.
Records show that there have been two cases
of fire which caused not only material
damages but desperation and also panic in
the neighborhood.
Although the soft drinks stand had been
eliminated, this gasoline service station is also
used by its operator as a garage and repair
shop for his fleet of taxicabs numbering ten or
more, adding another risk to the possible
outbreak of fire at this already small but
crowded gasoline station.

The foregoing report, having been submitted by a

police officer in the performance of his duties on the
basis of his own personal observation of the facts
reported, may properly be considered as an exception
to the hearsay rule. These facts, descriptive of the
location and objective circumstances surrounding the
operation of the gasoline station in question,
strengthen the presumption of negligence under the
doctrine of res ipsa loquitur, since on their face they
called for more stringent measures of caution than
those which would satisfy the standard of due
diligence under ordinary circumstances. There is no
more eloquent demonstration of this than the
statement of Leandro Flores before the police
investigator. Flores was the driver of the gasoline tank
wagon who, alone and without assistance, was
transferring the contents thereof into the underground
storage when the fire broke out. He said: "Before
loading the underground tank there were no people,
but while the loading was going on, there were people
who went to drink coca-cola (at the coca-cola stand)
which is about a meter from the hole leading to the
underground tank." He added that when the tank was
almost filled he went to the tank truck to close the
valve, and while he had his back turned to the
"manhole" he, heard someone shout "fire."
Even then the fire possibly would not have spread to
the neighboring houses were it not for another
negligent omission on the part of defendants, namely,
their failure to provide a concrete wall high enough to
prevent the flames from leaping over it. As it was the
concrete wall was only 2-1/2 meters high, and beyond
that height it consisted merely of galvanized iron
sheets, which would predictably crumple and melt
when subjected to intense heat. Defendants'
negligence, therefore, was not only with respect to the
cause of the fire but also with respect to the spread
thereof to the neighboring houses.
There is an admission on the part of Boquiren in his
amended answer to the second amended complaint
that "the fire was caused through the acts of a
stranger who, without authority, or permission of
answering defendant, passed through the gasoline
station and negligently threw a lighted match in the
premises." No evidence on this point was adduced,
but assuming the allegation to be true certainly any
unfavorable inference from the admission may be
taken against Boquiren it does not extenuate his

23
negligence. A decision of the Supreme Court of Texas,
upon facts analogous to those of the present case,
states the rule which we find acceptable here. "It is
the rule that those who distribute a dangerous article
or agent, owe a degree of protection to the public
proportionate to and commensurate with a danger
involved ... we think it is the generally accepted rule
as applied to torts that 'if the effects of the actor's
negligent conduct actively and continuously operate
to bring about harm to another, the fact that the active
and substantially simultaneous operation of the
effects of a third person's innocent, tortious or criminal
act is also a substantial factor in bringing about the
harm, does not protect the actor from liability.'
(Restatement of the Law of Torts, vol. 2, p. 1184,
#439). Stated in another way, "The intention of an
unforeseen and unexpected cause, is not sufficient to
relieve a wrongdoer from consequences of
negligence, if such negligence directly and
proximately cooperates with the independent cause in
the resulting injury." (MacAfee, et al. vs. Traver's Gas
Corporation, 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable
for the damages caused to appellants. This issue
depends on whether Boquiren was an independent
contractor, as held by the Court of Appeals, or an
agent of Caltex. This question, in the light of the facts
not controverted, is one of law and hence may be
passed upon by this Court. These facts are: (1)
Boquiren made an admission that he was an agent of
Caltex; (2) at the time of the fire Caltex owned the
gasoline station and all the equipment therein; (3)
Caltex exercised control over Boquiren in the
management of the state; (4) the delivery truck used
in delivering gasoline to the station had the name of
CALTEX painted on it; and (5) the license to store
gasoline at the station was in the name of Caltex,
which paid the license fees. (Exhibit T-Africa; Exhibit
U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit
Y-Africa).
In Boquiren's amended answer to the second
amended complaint, he denied that he directed one of
his drivers to remove gasoline from the truck into the
tank and alleged that the "alleged driver, if one there
was, was not in his employ, the driver being an
employee of the Caltex (Phil.) Inc. and/or the owners
of the gasoline station." It is true that Boquiren later
on amended his answer, and that among the changes

was one to the effect that he was not acting as agent

of Caltex. But then again, in his motion to dismiss
appellants' second amended complaint the ground
alleged was that it stated no cause of action since
under the allegations thereof he was merely acting as
agent of Caltex, such that he could not have incurred
personal liability. A motion to dismiss on this ground is
deemed to be an admission of the facts alleged in the
complaint.
Caltex admits that it owned the gasoline station as
well as the equipment therein, but claims that the
business conducted at the service station in question
was owned and operated by Boquiren. But Caltex did
not present any contract with Boquiren that would
reveal the nature of their relationship at the time of the
fire. There must have been one in existence at that
time. Instead, what was presented was a license
agreement manifestly tailored for purposes of this
case, since it was entered into shortly before the
expiration of the one-year period it was intended to
operate. This so-called license agreement (Exhibit 5Caltex) was executed on November 29, 1948, but
made effective as of January 1, 1948 so as to cover
the date of the fire, namely, March 18, 1948. This
retroactivity provision is quite significant, and gives
rise to the conclusion that it was designed precisely to
free Caltex from any responsibility with respect to the
fire, as shown by the clause that Caltex "shall not be
liable for any injury to person or property while in the
property herein licensed, it being understood and
agreed that LICENSEE (Boquiren) is not an
employee, representative or agent of LICENSOR
(Caltex)."
But even if the license agreement were to govern,
Boquiren can hardly be considered an independent
contractor. Under that agreement Boquiren would pay
Caltex the purely nominal sum of P1.00 for the use of
the premises and all the equipment therein. He could
sell only Caltex Products. Maintenance of the station
and its equipment was subject to the approval, in
other words control, of Caltex. Boquiren could not
assign or transfer his rights as licensee without the
consent of Caltex. The license agreement was
supposed to be from January 1, 1948 to December
31, 1948, and thereafter until terminated by Caltex
upon two days prior written notice. Caltex could at any
time cancel and terminate the agreement in case
Boquiren ceased to sell Caltex products, or did not

24
conduct the business with due diligence, in the
judgment of Caltex. Termination of the contract was
therefore a right granted only to Caltex but not to
Boquiren. These provisions of the contract show the
extent of the control of Caltex over Boquiren. The
control was such that the latter was virtually an
employee of the former.
Taking into consideration the fact that the
operator owed his position to the company
and the latter could remove him or terminate
his services at will; that the service station
belonged to the company and bore its
tradename and the operator sold only the
products of the company; that the equipment
used by the operator belonged to the
company and were just loaned to the operator
and the company took charge of their repair
and maintenance; that an employee of the
company supervised the operator and
conducted periodic inspection of the
company's gasoline and service station; that
the price of the products sold by the operator
was fixed by the company and not by the
operator; and that the receipts signed by the
operator indicated that he was a mere agent,
the finding of the Court of Appeals that the
operator was an agent of the company and
not an independent contractor should not be
disturbed.
To determine the nature of a contract courts
do not have or are not bound to rely upon the
name or title given it by the contracting
parties, should thereby a controversy as to
what they really had intended to enter into, but
the way the contracting parties do or perform
their respective obligations stipulated or
agreed upon may be shown and inquired into,
and should such performance conflict with the
name or title given the contract by the parties,
the former must prevail over the latter. (Shell
Company of the Philippines, Ltd. vs.
Firemens' Insurance Company of Newark,
New Jersey, 100 Phil. 757).
The written contract was apparently drawn for
the purpose of creating the apparent
relationship of employer and independent
contractor, and of avoiding liability for the

negligence of the employees about the

station; but the company was not satisfied to
allow such relationship to exist. The evidence
shows that it immediately assumed control,
and proceeded to direct the method by which
the work contracted for should be performed.
By reserving the right to terminate the contract
at will, it retained the means of compelling
submission to its orders. Having elected to
assume control and to direct the means and
methods by which the work has to be
performed, it must be held liable for the
negligence of those performing service under
its direction. We think the evidence was
sufficient to sustain the verdict of the jury.
(Gulf Refining Company v. Rogers, 57 S.W.
2d, 183).
Caltex further argues that the gasoline stored in the
station belonged to Boquiren. But no cash invoices
were presented to show that Boquiren had bought
said gasoline from Caltex. Neither was there a sales
contract to prove the same.
As found by the trial court the Africas sustained a loss
of P9,005.80, after deducting the amount of
P2,000.00 collected by them on the insurance of the
house. The deduction is now challenged as erroneous
on the ground that Article 2207 of the New Civil Code,
which provides for the subrogation of the insurer to
the rights of the insured, was not yet in effect when
the loss took place. However, regardless of the
silence of the law on this point at that time, the
amount that should be recovered be measured by the
damages actually suffered, otherwise the principle
prohibiting unjust enrichment would be violated. With
respect to the claim of the heirs of Ong P7,500.00
was adjudged by the lower court on the basis of the
assessed value of the property destroyed, namely,
P1,500.00, disregarding the testimony of one of the
Ong children that said property was worth P4,000.00.
We agree that the court erred, since it is of common
knowledge that the assessment for taxation purposes
is not an accurate gauge of fair market value, and in
this case should not prevail over positive evidence of
such value. The heirs of Ong are therefore entitled to
P10,000.00.
Wherefore, the decision appealed from is reversed
and respondents-appellees are held liable solidarily to

25
appellants, and ordered to pay them the aforesaid
sum of P9,005.80 and P10,000.00, respectively, with
interest from the filing of the complaint, and costs.
G.R. No. L-52732 August 29, 1988
F.F. CRUZ and CO., INC., petitioner,
vs.
THE COURT OF APPEALS, GREGORIO MABLE as
substituted by his wife LUZ ALMONTE MABLE
and children DOMING, LEONIDAS, LIGAYA,
ELENA, GREGORIO, JR., SALOME, ANTONIO, and
BERNARDO all surnamed MABLE, respondents.
Luis S. Topacio for petitioner.
Mauricio M. Monta for respondents.

CORTES, J.:
This petition to review the decision of the Court of
Appeals puts in issue the application of the common
law doctrine of res ipsa loquitur.
The essential facts of the case are not disputed.
The furniture manufacturing shop of petitioner in
Caloocan City was situated adjacent to the residence
of private respondents. Sometime in August 1971,
private respondent Gregorio Mable first approached
Eric Cruz, petitioner's plant manager, to request that a
firewall be constructed between the shop and private
respondents' residence. The request was repeated
several times but they fell on deaf ears. In the early
morning of September 6, 1974, fire broke out in
petitioner's shop. Petitioner's employees, who slept in
the shop premises, tried to put out the fire, but their
efforts proved futile. The fire spread to private
respondents' house. Both the shop and the house
were razed to the ground. The cause of the
conflagration was never discovered. The National
Bureau of Investigation found specimens from the
burned structures negative for the presence of
inflammable substances.
Subsequently, private respondents collected
P35,000.00 on the insurance on their house and the
contents thereof.

On January 23, 1975, private respondents filed an

action for damages against petitioner, praying for a
judgment in their favor awarding P150,000.00 as
actual damages, P50,000.00 as moral damages,
P25,000.00 as exemplary damages, P20,000.00 as
attorney's fees and costs. The Court of First Instance
held for private respondents:
WHEREFORE, the Court hereby
renders judgment, in favor of plaintiffs,
and against the defendant:
1. Ordering the defendant to pay to
the plaintiffs the amount of P80,000.00
for damages suffered by said plaintiffs
for the loss of their house, with interest
of 6% from the date of the filing of the
Complaint on January 23, 1975, until
fully paid;
2. Ordering the defendant to pay to
the plaintiffs the sum of P50,000.00 for
the loss of plaintiffs' furnitures,
religious images, silverwares,
chinawares, jewelries, books, kitchen
utensils, clothing and other valuables,
with interest of 6% from date of the
filing of the Complaint on January 23,
1975, until fully paid;
3. Ordering the defendant to pay to
the plaintiffs the sum of P5,000.00 as
moral damages, P2,000.00 as
exemplary damages, and P5,000.00
as and by way of attorney's fees;
4. With costs against the defendant;
5. Counterclaim is ordered dismissed,
for lack of merit. [CA Decision, pp. 1-2;
Rollo, pp. 29-30.]
On appeal, the Court of Appeals, in a decision
promulgated on November 19, 1979, affirmed the
decision of the trial court but reduced the award of
damages:
WHEREFORE, the decision declaring
the defendants liable is affirmed. The
damages to be awarded to plaintiff

26
should be reduced to P70,000.00 for
the house and P50,000.00 for the
furniture and other fixtures with legal
interest from the date of the filing of
the complaint until full payment
thereof. [CA Decision, p. 7; Rollo, p.
35.]
A motion for reconsideration was filed on December
3, 1979 but was denied in a resolution dated February
18, 1980. Hence, petitioner filed the instant petition for
review on February 22, 1980. After the comment and
reply were filed, the Court resolved to deny the
petition for lack of merit on June 11, 1980.
However, petitioner filed a motion for reconsideration,
which was granted, and the petition was given due
course on September 12, 1980. After the parties filed
their memoranda, the case was submitted for decision
on January 21, 1981.

reasonable evidence, in the absence

of explanation by the defendant, that
the accident arose from want of care.
[Africa v. Caltex (Phil.), Inc., G.R. No.
L-12986, March 31, 1966, 16 SCRA
448.]
Thus, in Africa, supra, where fire broke out in a Caltex
service station while gasoline from a tank truck was
being unloaded into an underground storage tank
through a hose and the fire spread to and burned
neighboring houses, this Court, applying the doctrine
of res ipsa loquitur, adjudged Caltex liable for the
loss.
The facts of the case likewise call for the application
of the doctrine, considering that in the normal course
of operations of a furniture manufacturing shop,
combustible material such as wood chips, sawdust,
paint, varnish and fuel and lubricants for machinery
may be found thereon.

Petitioner contends that the Court of Appeals erred:

1. In not deducting the sum of P35,000.00, which
private respondents recovered on the insurance on
their house, from the award of damages.
2. In awarding excessive and/or unproved damages.
3. In applying the doctrine of res ipsa loquitur to the
facts of the instant case.
The pivotal issue in this case is the applicability of the
common law doctrine of res ipsa loquitur, the issue of
damages being merely consequential. In view thereof,
the errors assigned by petitioner shall be discussed in
the reverse order.
1. The doctrine of res ipsa loquitur, whose application
to the instant case petitioner objects to, may be stated
as follows:
Where the thing which caused the
injury complained of is shown to be
under the management of the
defendant or his servants and the
accident is such as in the ordinary
course of things does not happen if
those who have its management or
control use proper care, it affords

It must also be noted that negligence or want of care

on the part of petitioner or its employees was not
merely presumed. The Court of Appeals found that
petitioner failed to construct a firewall between its
shop and the residence of private respondents as
required by a city ordinance; that the fire could have
been caused by a heated motor or a lit cigarette; that
gasoline and alcohol were used and stored in the
shop; and that workers sometimes smoked inside the
shop [CA Decision, p. 5; Rollo, p. 33.]
Even without applying the doctrine of res ipsa loquitur,
petitioner's failure to construct a firewall in accordance
with city ordinances would suffice to support a finding
of negligence.
Even then the fire possibly would not
have spread to the neighboring
houses were it not for another
negligent omission on the part of
defendants, namely, their failure to
provide a concrete wall high enough to
prevent the flames from leaping over
it. As it was the concrete wall was only
2-1/2 meters high, and beyond that
height it consisted merely of
galvanized iron sheets, which would
predictably crumble and melt when

27
subjected to intense heat. Defendant's
negligence, therefore, was not only
with respect to the cause of the fire
but also with respect to the spread
thereof to the neighboring
houses. [Africa v. Caltex (Phil.), Inc.,
supra; Emphasis supplied.]
In the instant case, with more reason should petitioner
be found guilty of negligence since it had failed to
construct a firewall between its property and private
respondents' residence which sufficiently complies
with the pertinent city ordinances. The failure to
comply with an ordinance providing for safety
regulations had been ruled by the Court as an act of
negligence [Teague v. Fernandez, G.R. No. L-29745,
June 4, 1973, 51 SCRA 181.]
The Court of Appeals, therefore, had more than
adequate basis to find petitioner liable for the loss
sustained by private respondents.
2. Since the amount of the loss sustained by private
respondents constitutes a finding of fact, such finding
by the Court of Appeals should not be disturbed by
this Court [M.D. Transit & Taxi Co., Inc. v. Court of
Appeals, G.R. No. L-23882, February 17, 1968, 22
SCRA 559], more so when there is no showing of
arbitrariness.
In the instant case, both the CFI and the Court of
Appeals were in agreement as to the value of private
respondents' furniture and fixtures and personal
effects lost in the fire (i.e. P50,000.00). With regard to
the house, the Court of Appeals reduced the award to
P70,000.00 from P80,000.00. Such cannot be
categorized as arbitrary considering that the evidence
shows that the house was built in 1951 for
P40,000.00 and, according to private respondents, its
reconstruction would cost P246,000.00. Considering
the appreciation in value of real estate and the
diminution of the real value of the peso, the valuation
of the house at P70,000.00 at the time it was razed
cannot be said to be excessive.
3. While this Court finds that petitioner is liable for
damages to private respondents as found by the
Court of Appeals, the fact that private respondents
have been indemnified by their insurer in the amount
of P35,000.00 for the damage caused to their house

and its contents has not escaped the attention of the

Court. Hence, the Court holds that in accordance with
Article 2207 of the Civil Code the amount of
P35,000.00 should be deducted from the amount
awarded as damages. Said article provides:
Art. 2207. If the plaintiffs 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
is subrogated to the rights of the
insured against the wrongdoer or the
person who 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. (Emphasis supplied.]
The law is clear and needs no interpretation. Having
been indemnified by their insurer, private respondents
are only entitled to recover the deficiency from
petitioner.
On the other hand, the insurer, if it is so minded, may
seek reimbursement of the amount it indemnified
private respondents from petitioner. This is the
essence of its right to be subrogated to the rights of
the insured, as expressly provided in Article 2207.
Upon payment of the loss incurred by the insured, the
insurer is entitled to be subrogated pro tanto to any
right of action which the insured may have against the
third person whose negligence or wrongful act caused
the loss [Fireman's Fund Insurance Co. v. Jamila &
Co., Inc., G.R. No. L-27427, April 7, 1976, 70 SCRA
323.]
Under Article 2207, the real party in interest with
regard to the indemnity received by the insured is the
insurer [Phil. Air Lines, Inc. v. Heald Lumber Co., 101
Phil. 1031, (1957).] Whether or not the insurer should
exercise the rights of the insured to which it had been
subrogated lies solely within the former's sound
discretion. Since the insurer is not a party to the case,
its identity is not of record and no claim is made on its
behalf, the private respondent's insurer has to claim

28
his right to reimbursement of the P35,000.00 paid to
the insured.
WHEREFORE, in view of the foregoing, the decision
of the Court of Appeals is hereby AFFIRMED with the
following modifications as to the damages awarded
for the loss of private respondents' house, considering
their receipt of P35,000.00 from their insurer: (1) the
damages awarded for the loss of the house is
reduced to P35,000.00; and (2) the right of the insurer
to subrogation and thus seek reimbursement from
petitioner for the P35,000.00 it had paid private
respondents is recognized.
SO ORDERED.
G.R. No. 118231 July 5, 1996
DR. VICTORIA L. BATIQUIN and ALLAN
BATIQUIN, petitioners,
vs.
COURT OF APPEALS, SPOUSES QUEDO D.
ACOGIDO and FLOTILDE G.
VILLEGAS, respondents.

DAVIDE, JR., J.:p

Throughout history, patients have consigned their
fates and lives to the skill of their doctors. For a
breach of this trust, men have been quick to demand
retribution. Some 4,000 years ago, the Code of
Hammurabi 1 then already provided: "If a physician
make a deep incision upon a man with his bronze
lancet and cause the man's death, or operate on the
eye socket of a man with his bronze lancet and
destroy the man's eyes, they shall cut off his
hand." 2 Subsequently, Hippocrates 3 wrote what was
to become part of the healer's oath: "I will follow that
method of treatment which according to my ability and
judgment, I consider for the benefit of my patients,
and abstain from whatever is deleterious and
mischievous. . . . While I continue to keep this oath
unviolated may it be granted me to enjoy life and
practice the art, respected by all men at all times but
should I trespass and violate this oath, may the
reverse be my lot." At present, the primary objective of
the medical profession if the preservation of life and
maintenance of the health of the people. 4

Needless to say then, when a physician strays from

his sacred duty and endangers instead the life of his
patient, he must be made to answer therefor.
Although society today cannot and will not tolerate the
punishment meted out by the ancients, neither will it
and this Court, as this case would show, let the act go
uncondemned.
The petitioners appeal from the decision 5 of the Court
of Appeals of 11 May 1994 in CA-G.R. CV No. 30851,
which reversed the decision 6 of 21 December 1990 of
Branch 30 of the Regional Trial Court (RTC) of
Negros Oriental in Civil Case No. 9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician
at the Negros Oriental Provincial
Hospital, Dumaguete City from
January 9, 1978 to September 1989.
Between 1987 and September, 1989
she was also the Actg. Head of the
Department of Obstetrics and
Gynecology at the said Hospital.
Mrs. Villegas is a married woman who
submitted to Dr. Batiquin for prenatal
care as the latter's private patient
sometime before September 21, 1988.
In the morning of September 21, 1988
Dr. Batiquin, with the assistance of Dr.
Doris Teresita Sy who was also a
Resident Physician at the same
Hospital, C.I. and O.R. Nurse Arlene
Diones and some student nurses
performed a simple caesarean section
on Mrs. Villegas at the Negros
Oriental Provincial Hospital and after
45 minutes Mrs. Villegas delivered her
first child, Rachel Acogido, at about
11:45 that morning. Thereafter,
Plaintiff remained confined at the
Hospital until September 27, 1988
during which period of confinement
she was regularly visited by Dr.
Batiquin. On September 28, 1988 Mrs.
Villegas checked out of the
Hospital. . . and on that same day she
paid Dr. Batiquin, thru the latter's

29
secretary, the amount of P1,500.00 as
"professional fee". . . .
Soon after leaving the Hospital Mrs.
Villegas began to suffer abdominal
pains and complained of being
feverish. She also gradually lost her
appetite, so she consulted Dr. Batiquin
at the latter's polyclinic who prescribed
for her certain medicines. . . which she
had been taking up to December,
1988.
In the meantime, Mrs. Villegas was
given a Medical Certificate by Dr.
Batiquin on October 31, 1988. . .
certifying to her physical fitness to
return to her work on November 7,
1988. So, on the second week of
November, 1988 Mrs. Villegas
returned to her work at the Rural Bank
of Ayungon, Negros Oriental.
The abdominal pains and fever kept
on recurring and bothered Mrs.
Villegas no end despite the
medications administered by Dr.
Batiquin. When the pains became
unbearable and she was rapidly losing
weight she consulted Dr. Ma. Salud
Kho at the Holy Child's Hospital in
Dumaguete City on January 20, 1989.
The evidence of Plaintiffs show that
when Dr. Ma. Salud Kho examined
Mrs. Villegas at the Holy Child's
Hospital on January 20, 1989 she
found Mrs. Villegas to be feverish,
pale and was breathing fast. Upon
examination she felt an abdominal
mass one finger below the umbilicus
which she suspected to be either a
tumor of the uterus or an ovarian cyst,
either of which could be cancerous.
She had an x-ray taken of Mrs.
Villegas' chest, abdomen and kidney.
She also took blood tests of Plaintiff. A
blood count showed that Mrs. Villegas
had [an] infection inside her abdominal
cavity. The results of all those

examinations impelled Dr. Kho to

suggest that Mrs. Villegas submit to
another surgery to which the latter
agreed.
When Dr. Kho opened the abdomen of
Mrs. Villegas she found whitish-yellow
discharge inside, an ovarian cyst on
each of the left and right ovaries which
gave out pus, dirt and pus behind the
uterus, and a piece of rubber material
on the right side of the uterus
embedded on [sic] the ovarian cyst, 2
inches by 3/4 inch in size. This piece
of rubber material which Dr. Kho
described as a "foreign body" looked
like a piece of a "rubber glove". . . and
which is [sic] also "rubber-drain
like". . . . It could have been a torn
section of a surgeon's gloves or could
have come from other sources. And
this foreign body was the cause of the
infection of the ovaries and
consequently of all the discomfort
suffered by Mrs. Villegas after her
delivery on September 21, 1988. 7
The piece of rubber allegedly found near private
respondent Flotilde Villegas's uterus was not
presented in court, and although Dr. Ma. Salud Kho
Testified that she sent it to a pathologist in Cebu City
for examination, 8 it was not mentioned in the
pathologist's Surgical Pathology Report. 9
Aside from Dr. Kho's testimony, the evidence which
mentioned the piece of rubber are a Medical
Certificate, 10 a Progress Record, 11 an Anesthesia
Record, 12 a Nurse's Record, 13 and a Physician's
Discharge Summary. 14 The trial court, however,
regarded these documentary evidence as mere
hearsay, "there being no showing that the person or
persons who prepared them are deceased or unable
to testify on the facts therein stated. . . . Except for the
Medical Certificate (Exhibit "F"), all the above
documents were allegedly prepared by persons other
than Dr. Kho, and she merely affixed her signature on
some of them to express her agreement
thereto. . . ." 15 The trial court also refused to give
weight to Dr. Kho's testimony regarding the subject
piece of rubber as Dr. Kho "may not have had first-

30
hand knowledge" thereof, 16 as could be gleaned from
her statement, thus:
A . . . I have heard
somebody that [sic]
says [sic] there is [sic]
a foreign body that
goes with the tissues
but unluckily I don't
know where the rubber
was. 17
The trial court deemed vital Dr. Victoria Batiquin's
testimony that when she confronted Dr. Kho regarding
the piece of rubber, "Dr. Kho answered that there was
rubber indeed but that she threw it away." 18 This
statement, the trial court noted, was never denied nor
disputed by Dr. Kho, leading it to conclude:
There are now two different versions
on the whereabouts of that offending
"rubber" (1) that it was sent to the
Pathologist in Cebu as testified to in
Court by Dr. Kho and (2) that Dr. Kho
threw it away as told by her to
Defendant. The failure of the Plaintiffs
to reconcile these two different
versions serve only to weaken their
claim against Defendant Batiquin. 19
All told, the trial court held in favor of the petitioners
herein.
The Court of Appeals reviewed the entirety of Dr.
Kho's testimony and, even without admitting the
private respondents' documentary evidence, deemed
Dr. Kho's positive testimony to definitely establish that
a piece of rubber was found near private respondent
Villegas's uterus. Thus, the Court of Appeals reversed
the decision of the trial court, holding:
4. The fault or negligence of appellee
Dr. Batiquin is established by
preponderance of evidence. The trial
court itself had narrated what
happened to appellant Flotilde after
the caesarean operation made by
appellee doctor. . . . After the second
operation, appellant Flotilde became
well and healthy. Appellant Flotilde's

troubles were caused by the infection

due to the "rubber" that was left inside
her abdomen. Both appellant; testified
that after the operation made by
appellee doctor, they did not go to any
other doctor until they finally decided
to see another doctor in January, 1989
when she was not getting any better
under the care of appellee Dr.
Batiquin. . . . Appellee Dr. Batiquin
admitted on the witness stand that she
alone decided when to close the
operating area; that she examined the
portion she operated on before closing
the same. . . Had she exercised due
diligence, appellee Dr. Batiquin would
have found the rubber and removed it
before closing the operating area. 20
The appellate court then ruled:
Appellants' evidence show[s] that they
paid a total of P17,000.00 [deposit of
P7,100.00 (Exh. G-1-A) plus hospital
and medical expenses together with
doctor's fees in the total amount
P9,900.00 (Exhs. G and G-2)] for the
second operation that saved her life.
For the miseries appellants endured
for more than three (3) months, due to
the negligence of appellee Dr. Batiquin
they are entitled to moral damages in
the amount of P100,000.00;
exemplary damages in the amount of
P20,000.00 and attorney's fees in the
amount of P25,000.00.
The fact that appellant Flotilde can no
longer bear children because her
uterus and ovaries were removed by
Dr. Kho is not taken into consideration
as it is not shown that the removal of
said organs were the direct result of
the rubber left by appellee Dr. Batiquin
near the uterus. What is established is
that the rubber left by appellee caused
infection, placed the life of appellant
Flotilde in jeopardy and caused
appellant fear, worry and anxiety. . . .

31
WHEREFORE, the appealed
judgment, dismissing the complaint for
damages is REVERSED and SET
ASIDE. Another judgment is hereby
entered ordering defendantsappellees to pay plaintiffs-appellants
the amounts of P17,000.00 as and for
actual damages; P100,000.00 as and
for moral damages; P20,000.00 as
and for exemplary damages; and
P25,000.00 as and for attorney's fees
plus the costs of litigation.
SO ORDERED. 21
From the above judgment, the petitioners appealed to
this Court claiming that the appellate court: (1)
committed grave abuse of discretion by resorting to
findings of fact not supported by the evidence on
record, and (2) exceeded its discretion, amounting to
lack or excess of jurisdiction, when it gave credence
to testimonies punctured with contradictions and
falsities.

legal
case, I have heard so
mebody that [sic] says
[sic] there is [sic] a
foreign body that goes
with the tissues but unl
uckily I don't know wh
ere the rubber was. It
was not in the Lab, it
was not in
Cebu. 23 (emphasis
supplied)
The petitioners prefer the trial court's
interpretation of the above testimony, i.e., that
Dr. Kho's knowledge of the piece of rubber
was based on hearsay. The Court of Appeals,
on the other hand, concluded that the
underscored phrase was taken out of context
by the trial court. According to the Court of
Appeals, the trial court should have likewise
considered the other portions of Dr. Kho's
testimony, especially the following:

The private respondents commented that the petition

raised only questions of fact, which were not proper
for review by this Court.

Q So you did actually

conduct the operation
on her?

While the rule is that only questions of law may be

raised in a petition for review on certiorari, there are
exceptions, among which are when the factual
findings of the trial court and the appellate court
conflict, when the appealed decision is clearly
contradicted by the evidence on record, or when the
appellate court misapprehended the facts. 22

A Yes, I did.

After deciphering the cryptic petition, we find that the

focal point of the instant appeal is the appreciation of
Dr. Kho's testimony. The petitioners contend that the
Court of Appeals misappreciated the following portion
of Dr. Kho's testimony:
Q What is the purpose
of the examination?
A Just in case, I was
just thinking at the
back of my mind, just
in case this would turn
out to be a medico-

Q And what was the

result?
A Opening up her
abdomen, there was
whitish-yellow
discharge inside the
abdomen, there was
an ovarian cyst on the
left and side and there
was also an ovarian
cyst on the right which,
on opening up or
freeing it up from the
uterus, turned out to
be pus. Both ovaries
turned out. . . to have
pus. And then,
cleaning up the uterus,
at the back of the

32
uterus it was very dirty,
it was full of pus. And
there was a [piece of]
rubber, we found a
[piece of] rubber on
the right
side. 24
We agree with the Court of Appeals. The phrase
relied upon by the trial court does not negate the fact
that Dr. Kho saw a piece of rubber in private
respondent Villegas's abdomen, and that she sent it
to a laboratory and then to Cebu City for examination
by a pathologist. 25 Not even the Pathologist's Report,
although devoid of any mention of a piece of rubber,
could alter what Dr. Kho saw. Furthermore, Dr. Kho's
knowledge of the piece of rubber could not be based
on other than first-hand knowledge for, as she
asserted before the trial court:
Q But you are sure
you have seen [the
piece of rubber]?
A Oh yes. I was not the
only one who saw it. 26
The petitioners emphasize that the private
respondents never reconciled Dr. Kho's testimony
with Dr. Batiquin's claim on the witness stand that
when Dr. Batiquin confronted Dr. Kho about the
foreign body, the latter said that there was a piece of
rubber but that she threw it away. Although hearsay,
Dr. Batiquin's claim was not objected to, and hence,
the same is admissible 27 but it carries no probative
value. 28 Nevertheless, assuming otherwise, Dr.
Batiquin's statement cannot belie the fact that Dr. Kho
found a piece of rubber near private respondent
Villegas's uterus. And even if we were to doubt Dr.
Kho as to what she did to the piece of rubber, i.e.,
whether she threw it away or sent it to Cebu City, we
are not justified in distrusting her as to her recovery of
a piece of rubber from private respondent Villegas's
abdomen. On this score, it is perfectly reasonable to
believe the testimony of a witness with respect to
some facts and disbelieve his testimony with respect
to other facts. And it has been aptly said that even
when a witness is found to have deliberately falsified
in some material particulars, it is not required that the
whole of his uncorroborated testimony be rejected,

but such portions thereof deemed worthy of belief

may be credited. 29
It is here worth noting that the trial court paid heed to
the following portions of Dr. Batiquin's testimony: that
no rubber drain was used in the operation, 30 and that
there was neither any tear on Dr. Batiquin's gloves
after the operation nor blood smears on her hands
upon removing her gloves. 31 Moreover, the trial court
pointed out that the absence of a rubber drain was
corroborated by Dr. Doris Sy, Dr. Batiquin's assistant
during the operation on private respondent
Villegas. 32 But the trial court failed to recognize that
the assertions of Drs. Batiquin and Sy were denials or
negative testimonies. Well-settled is the rule that
positive testimony is stronger than negative
testimony. 33 Of course, as the petitioners advocate,
such positive testimony must come from a credible
source, which leads us to the second assigned error.
While the petitioners claim that contradictions and
falsities punctured Dr. Kho's testimony, a regarding of
the said testimony reveals no such infirmity and
establishes Dr. Kho as a credible witness. Dr. Kho
was frank throughout her turn on the witness stand.
Furthermore, no motive to state any untruth was ever
imputed against Dr. Kho, leaving her trustworthiness
unimpaired. 34 The trial court's following declaration
shows that while it was critical of the lack of care with
which Dr. Kho handled the piece of rubber, it was not
prepared to doubt Dr. Kho's credibility, thus only
supporting our appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less
than honest when she testified about
her findings, but it can also be said
that she did not take the most
appropriate precaution to preserve
that "piece of rubber" as an eloquent
evidence of what she would reveal
should there be a "legal problem"
which she claim[s] to have
anticipated. 35
Considering that we have assessed Dr. Kho to be a
credible witness, her positive testimony [that a piece
of rubber was indeed found in private respondent
Villega's abdomen] prevails over the negative
testimony in favor of the petitioners.

33
As such, the rule of res ipsa loquitur comes to fore.
This Court has had occasion to delve into the nature
and operation of this doctrine:
This doctrine [res ipsa loquitur] is
stated thus: "Where the thing which
causes injury is shown to be under the
management of the defendant, and
the accident is such as in the ordinary
course of things does not happen in
those who have the management use
proper care, it affords reasonable
evidence, in the absence of an
explanation by the defendant, that the
accident arose from want of care." Or
as Black's Law Dictionary puts it:
Res ipsa loquitur. The
thing speaks for itself.
Rebuctable
presumption or
inference that
defendant was
negligent, which arises
upon proof that [the]
instrumentality causing
injury was in
defendant's exclusive
control, and that the
accident was one
which ordinary does
not happen in absence
of negligence. Res
ipsa loquitur is [a] rule
of evidence whereby
negligence of [the]
alleged wrongdoer
may be inferred from
[the] mere fact that
[the] accident
happened provided
[the] character of [the]
accident and
circumstances
attending it lead
reasonably to belief
that in [the] absence of
negligence it would not
have occurred and that
thing which caused

injury is shown to have

been under [the]
management and
control of [the] alleged
wrongdoer. . . . Under
[this] doctrine
. . . the happening of
an injury permits an
inference of
negligence where
plaintiff produces
substantial evidence
that [the] injury was
caused by an agency
or instrumentality
under [the] exclusive
control and
management of
defendant, and that
the occurrence [sic]
was such that in the
ordinary course of
things would not
happen if reasonable
care had been used.
xxx xxx xxx
The doctrine of [r]es
ipsa loquitur as a rule
of evidence is peculiar
to the law of
negligence which
recognizes that prima
facie negligence may
be established without
direct proof and
furnishes a substitute
for specific proof of
negligence. The
doctrine is not a rule of
substantive law, but
merely a mode of
proof or a mere
procedural
convenience. The rule,
when applicable to the
facts and
circumstances of a
particular case, is not

34
intended to and does
not dispense with the
requirement of proof of
culpable negligence on
the party charged. It
merely determines and
regulates what shall
beprima
facie evidence thereof
and facilitates the
burden of plaintiff of
proving a breach of the
duty of due care. The
doctrine can be
invoked when and only
when, under the
circumstances
involved, direct
evidence is absent and
not readily available. 36
In the instant case, all the requisites for recourse to
the doctrine are present. First, the entire proceedings
of the caesarean section were under the exclusive
control of Dr. Batiquin. In this light, the private
respondents were bereft of direct evidence as to the
actual culprit or the exact cause of the foreign object
finding its way into private respondent Villegas's body,
which, needless to say, does not occur unless through
the intersection of negligence. Second, since aside
from the caesarean section, private respondent
Villegas underwent no other operation which could
have caused the offending piece of rubber to appear
in her uterus, it stands to reason that such could only
have been a by-product of the caesarean section
performed by Dr. Batiquin. The petitioners, in this
regard, failed to overcome the presumption of
negligence arising from resort to the doctrine of res
ipsa loquitur. Dr. Batiquin is therefore liable for
negligently leaving behind a piece of rubber in private
respondent Villegas's abdomen and for all the
adverse effects thereof.
As a final word, this Court reiterates its recognition of
the vital role the medical profession plays in the lives
of the people, 37 and the State's compelling interest to
enact measures to protect the public from "the
potentially deadly effects of incompetence and
ignorance in those who would undertake to treat our
bodies and minds for disease or trauma." 38 Indeed, a

physician is bound to serve the interest of his patients

"with the greatest of solicitude, giving them always his
best talent and skill." 39 Through her tortious conduct,
the petitioner endangered the life of Flotilde Villegas,
in violation of her profession's rigid ethical code and in
contravention of the legal standards set forth for
professionals, in general, 40 and members of the
medical profession, 41 in particular.
WHEREFORE, the challenged decision of 11 May
1994 of the Court of Appeals in CA-G.R. CV No.
30851 is hereby AFFIRMED in toto.
Costs against the petitioners.
SO ORDERED.
ROSARIO SANTOS VDA. DE BONIFACIO,
VIRGINIA BONIFACIO, ROSALINDA
BONIFACIO, ROMEO BONIFACIO,
ZENAIDA BONIFACIO, GENEROSO
BONIFACIO, ANDRES BONIFACIO, JOSE
BONIFACIO, JOVITO BONIFACIO, JR.,
CORAZON BONIFACIO, ALBERTO
CONCEPCION, AGUSTIN ANGELES and
ELISA ANGELES, Plaintiffs-Appellees, v. B.
L. T. BUS CO., INC., as Successors of
LAGUNA TAYABAS BUS COMPANY and
SERGIO DE LUNA, Defendants-Appellants.
Leandro Sevilla & Ramon C. Aquino
for Plaintiffs-Appellees.
Domingo E. de Lara & Associates,
for Defendants-Appellants.
DECISION
REYES, J.B.L., J.:
Direct appeal to the Supreme Court (lodged
prior to the enactment of Republic Act No.
5440) from the judgment of the Court of First
Instance of Rizal (Pasig), in its Civil Case No.
8275, sentencing the defendants-appellants, B.
L. T. Bus Co., Inc., and its driver Sergio de
Luna, to pay jointly and severally to the
plaintiffs-appellees, as damages arising from a
vehicular accident, the total amount of

35
P240,905.72, with interest from the filing of
the complaint.
Said Civil Case 8275 was filed pursuant to a
reservation made by the plaintiffs to file a civil
action separately from the criminal case
instituted against the B. L. T. B. bus driver
Sergio de Luna in the Court of First Instance of
Laguna, for homicide and multiple physical
injuries and damage to property through
reckless imprudence, in connection with the
same vehicular accident. The Laguna Court had
convicted de Luna of the criminal charge, but
the judgment, was appealed and is pending in
the Court of Appeals.
Of the detailed findings of facts of the trial
court, we affirm the following as either noncontroverted or preponderantly established by
the evidence:jgc:chanrobles.com.ph
"Before February 27, 1964, Jovito Bonifacio,
Sr., together with his wife (plaintiff Rosario
Santos de Bonifacio) and neighbor Agustin
Angeles, used to bathe in the Pansol hot
springs at Los Baos, Laguna, twice a week.
They made such trips in his 1962 Mercedes
Benz car with plaintiff Alberto Concepcion as
his driver, a duly licensed driver since 1946.
"About 4:00 oclock in the morning of February
27, 1964, the four of them left Barrio
Sumilang, Pasig, bound for the Pansol hot
springs in Los Baos, Laguna. Jovito, Sr. was
seated beside his driver Alberto Concepcion;
while Agustin Angeles was seated on the left
side of the rear seat with plaintiff Rosario
Santos Vda. de Bonifacio to his right. Alberto
Concepcion was driving the car on the right
lane facing Los Baos at the rate of 30 miles
per hour because the concrete road was
slippery as it was then drizzling. After going
down the overpass or bridge and negotiating
the curve after the said bridge at Barrio
Landayan, San Pedro Tunasan, Laguna, Alberto
Concepcion saw a cargo truck parked on the
left portion of the concrete highway without
any parking lights. It was about 5:20 a.m., still
dark and raining. While he was about 15
meters from the said parked cargo truck, he
saw for the first time the oncoming LTB
passenger bus No. 136 bearing 1964 plate No.
PUB-1276, about 200 meters away from him
and about 185 meters behind the parked cargo

truck. Said bus was then driven at a very fast

clip by the defendant Sergio de Luna. Because
he was on his right lane, Alberto Concepcion
continued on his way at the rate of 30 miles
per hour. The parked truck was entirely on the
left lane and about one (1) meter from the
center, of the concrete highway. His Mercedes
Benz was passing alongside the parked truck
and about 70 cm. from the center of the road.
Just as he was about to pass beyond the
parked truck, the oncoming LTB bus suddenly
swerved to its left towards the right lane of the
Mercedes Benz and collided with the Mercedes
Benz. The place of collision was about 10
meters from the parked truck. The impact
caused the Mercedes car to swerve to the right
shoulder of the road facing Los Baos, as
Alberto slammed his brakes, and the Mercedes
car stopped on the right shoulder, which is
about two meters wide: while the LTB bus
made a complete U-turn and finally stopped on
the left lane of the concrete highway facing Los
Baos or the direction where it came from. It
was filled with about 40 passengers then (see
pictures Exhs. H, I, J, K, L, M, and SS or 13
and 26, pp. 92-94, 391, 576, rec.). The left
front part of the Mercedes Benz was smashed
(see pictures Exhs. H and I, p. 92, rec.). The
violent impact threw Jovito Bonifacio, Sr. out of
the car onto the right shoulder of the road
facing Los Baos, causing his instantaneous
death (Exhs. J. K. L and M, pp, 93-94, rec.)
while the other passengers, the driving [sic]
Alberto Concepcion, Mrs. Rosario Santos Vda.
de Bonifacio, and Agustin Angeles, lost
consciousness and were seriously injured. They
recovered consciousness in the Manila
Sanitarium and Hospital in Pasay City to where
they were brought that same morning of the
incident." (Decision, Rec. on App., pp. 116119)
As is usual in cases of this kind, three main
issues arise:chanrob1es virtual 1aw library
(1) Who of the drivers of the colliding vehicles
was at fault?
(2) Is the employer of the guilty driver
responsible for the fault of the latter?
(3) Are the damages awarded reasonable?
Taking up the questions seriatim, we find that

36
the court below correctly held that the
proximate cause of the accident was the
negligence of the L.T.B. bus driver, de Luna,
who failed to take the necessary precautions
demanded by the circumstances. He admitted
that when the mishap occurred, it was still
dark, and as it was raining, requisite prudence
required that de Luna should be more careful
than usual, and slacken his pace, for the wet
highway could be expected to be slippery. Even
assuming that the presence of the parked
cargo truck did constitute an emergency,
although it was in plain view, still, if de Luna
had not been driving unreasonably fast, his
bus would not have skidded to the left and
invaded the lane of the oncoming car when he
applied his brakes. His having failed to see the
parked cargo truck until he was only 50 meters
from it also justifies the inference that he was
inattentive to his responsibility as a driver. That
he did not know that anyone else was using
the road is no defense to his negligent
operation of his vehicle, since he should be
especially watchful in anticipation of others
who may be using the highway; and his failure
to keep a proper lookout for persons and
objects in the line to be traversed constitutes
negligence (7 Am. Jur. 2d 901). Furthermore,
in intruding into the lane reserved for vehicles
coming from the opposite direction, it was
incumbent upon the bus driver to make sure
that be could do so without danger.
Confirmatory of the foregoing considerations is
the fact that de Luna himself admitted, in the
statement, Exhibit "A," taken by the chief of
police, and subscribed and sworn to before the
Mayor of San Pedro, Laguna, at 8:00 oclock in
the same morning of the accident, and while
the facts were fresh in his mind, that when he
(de Luna) noticed the parked cargo truck he
slammed on his brakes and because of this,
the bus skidded to the left and hit the
Mercedes Benz car (." . . ang ginawa ko po ay
nagpreno ako ng aking sasakyang
minamaneho at dahil po dito ay umislayd ang
aking trak na papuntang kaliwa, subalit siya po
namang pagdaan ng isang awtong Mercedes
Benz na aking nabunggo . . .")
The version at the trial of defendant-appellant
Sergio de Luna, and his witnesses, is that
when the former saw the parked cargo truck
he slowed down, swerved a little to the left,

then completely stopped his vehicle; that right

then, the Mercedes Benz car hit his bus, with
such force that the bus turned to the direction
where it came from. Not only is this version
belied by de Lunas original and spontaneous
statement to the San Pedro Police, but it was
infirmed by physical facts.
It is incredible, and contrary to common
experience and observation, that the bus,
admittedly three (3) times bigger than the car,
and loaded with about forty(40) passengers,
could be turned around while standing still by
the impact of the much smaller car. Nor was
his swerving to the left justifiable if he were in
control of his vehicle, since he had a clear view
of the left lane and the oncoming Mercedes
Benz from the drivers seat of the bus.
Evidence, to be believed, must not only
proceed from the mouth of a credible witness,
but it must be credible in itself (People v.
Baquiran, L-20153, 29 June 1967, 20 SCRA
451).
There was no negligence on the part of the
driver of the Mercedes car, Alberto Concepcion.
"A motorist who is properly proceeding on his
own side of the highway, even after he sees an
approaching motorist coming toward him on
the wrong side, is generally entitled to assume
that the other motorist will return to his proper
lane of traffic, . . ." (8 Am. Jur. 2d 319)
That the L.T.B. bus was damaged near the
front right wheel and fender proves that the
Mercedes was already very close to the place
of collision when it occurred, so that the car
driver had no chance to evade it. Nor did said
driver, Concepcion, possess any means of
knowing that the bus intruding into his line of
travel was skidding out of control, and could
not draw back to its proper lane.
Appellants pretend that the Mercedes car was
proceeding at reckless speed, but this charge
rests on nothing more substantial than an
alleged statement by Mrs. Bonifacio at the
hospital that her driver was driving fast. The
court below, in our opinion, correctly
discredited this evidence, for at the time it was
supposedly made, Mrs. Bonifacio was still in a
state of shock, with visitors barred by doctors
orders; and, moreover, defense witness, ex-

37
Cpl. Casantusan, did not even take down or
report the pretended statement,
notwithstanding its patent importance; there
was no corroboration thereof, and it was
contradicted by the car driver and by Mrs.
Bonifacio herself. The rule, too well-known to
require citation of authorities, is that in the
absence of clear error (and none is shown in
the present instance) a trial courts estimate
on the credibility of witnesses, whose
demeanor it had unparalleled opportunity to
observe, will not be disturbed on appeal.
At any rate, so long as the Mercedes car
remained in its proper lane, its speed could not
have been the proximate cause of the mishap.
On the second issue posed, the rule under
Article 2180 of the Civil Code of the Philippines
makes an employer liable for damage caused
by his employee in the discharge of his duties,
unless the former adequately proves having
exercised due care in the selection and
supervision of the employee.
Appellant company defends that it had
observed all the diligence of a good father of a
family to prevent damage, conformably to the
last paragraph of said Article 2180. It adduced
evidence to show that in hiring driver de Luna,
the latter was tested on his proficiency as a
driver; that he passed the test given by the
companys board of examiners, composed of
the office manager, the medical director, the
chief of the legal department and the job
superintendent, aside from the orientation test
given by experienced drivers along the
different lines of the company; that the
company issued service manuals to its
employees, aside from memorandum circulars
and duty orders to govern the conduct of its
drivers; that it assigns inspectors interlinked
with one another along the different lines of
the company to see to it that the rules and
regulations are complied with by all the
drivers; that it metes out penalties, such as
fines, to erring drivers; that it maintains shops
at different stations where several mechanics
are assigned to see to it that no truck leaves
on the line without being thoroughly checked;
that it keeps a summary of service records of
its drivers to help in determining their
efficiency and fitness; that it conducts
seminars on safe-driving and prevention of

accidents; that it had received an award of

appreciation in 1963 by the National Traffic
Safety Committee; that it used the best
available brake lining on Bus No. 136 and that
said bus was completely checked for road
worthiness the day before the accident.
Yet the evidence of appellant company also
established facts that demolished its very
defense of "diligence of a good father of a
family," for it plainly shows inexcusable laxity
in the supervision of its driver and in the
maintenance of its vehicles. Salient among
these facts are the following:chanrob1es
virtual 1aw library
(a) Defense witness Cuevas asserted that the
brake lining of the bus was changed on 10
January 1964, over a month prior to the
accident, although brake linings last about 30
days only. The change in lining was overdue
but the appellant bus company tried to hide
this fact. Said the trial
court:jgc:chanrobles.com.ph
". . . The job sheet for the change of brake
lining appears dated Jan. 10, 1964, in ink.
There was an attempt to change it by crossing
out "Jan." and super-imposing the word "Feb."
in pencil (see page 598, rec.). There was an
attempt to make "Feb. 10, 1964" as altered
appear as the correct date instead of
January 10, 1964 by not arranging
chronologically the various orders and/or job
sheets for said bus No. 136 in said folder, Exh.
27, and by placing the said small job sheet as
page 11 of the said folder, Exhibit 27, which
has for its first page an order for bus No. 136
dated February 13, 1964 (p. 1 of Exhibit 27 or
Exh. 25-B, p. 290, rec.)." (Rec. on Appeal, p.
132.)
By resorting to these documentary alterations,
the company indicated its awareness that its
case is weak or unfounded and from that may
be inferred that its case of appellant lacks truth
and merit. 1 The claim on appeal that the
alteration in the writing was innocent, or that
the company should have been given an
opportunity to explain because it was caught
unaware that the court below would take the
incident against them as it did, is untenable.
The rule requires that a party, producing a
writing as genuine but which as found altered

38
after its execution, in a part material to the
question in dispute, should account for the
alteration, and if "he do that, he may give the
writing in evidence, but not otherwise."
(Section 32, Rule 132, Revised Rules of Court.)
In other words, the company should have
accounted for the alteration when it introduced
the job sheet in evidence, and not endeavor to
explain the alteration afterwards.

therefore, overdue by one (1) month and

seventeen (17) days at the time of the mishap,
and must have contributed to the drivers
inability to control the skidding that led to the
collision.

(b) The record of driver de Luna shows that, on

the average, he was at the wheel and on the
road for eleven (11) hours and thirty-five (35)
minutes per day, from Paete to Manila and
back, and Paete to San Antonio and back,
starting before dawn until the evening. He has
been in the Paete-Manila route for four (4)
years (T.s.n., 22 November 1965, pages 3839). He was paid by the hour, so that the more
time he drove, the greater compensation he
received. That employer company thus
abetted, obviously for the sake of greater
profit, the gruelling schedule, unmindful of the
harmful consequence that excessive working
time would register upon the drivers health,
and, particularly, on his reflexes. The pay-off
came when driver de Luna, because of his
accumulated fatigue and inattentiveness failed
to notice seasonably the presence of the
parked cargo truck upon his lane of traffic,
impelling him to brake suddenly in an effort to
avoid hitting it, The braking made the bus slide
and encroach upon the other lane, resulting in
its collision with the oncoming automobile.

"The mere issuance of numerous rules and

regulations, without the corresponding periodic
checks as to whether such rules and
regulations are being complied with, is not
sufficient to exempt the defendant bus firm
from liability arising from the negligence of its
employees. Neither the establishment of
maintenance and repair shops, which do not
regularly service its buses, would suffice to
demonstrate the diligence of the employer in
the selection and supervision of its employees
and in servicing and maintaining the buses in
good running condition."cralaw virtua1aw
library

(c) Sergio de Luna had repeatedly violated

company rules. Despite his numerous
infractions, 31 in all since 1951, and including
a collision with a carretela, the company took
no more drastic action against him other than
repeated warnings and imposing token fines,
which on the whole amounts to tolerance of
the violations or laxity or negligence in the
enforcement of the company rules.
(d) On its bus involved in the accident (No.
136), the appellant company was also
negligent. The bus was last overhauled on 26
January 1963 but was usually overhauled
every six months; its overhauling therefore,
was overdue by six months. In addition, as
heretofore observed, its brake linings were last
changed on 10 January 1964, but were usually
changed every 30 days; the changing was

In the face of these plain instances of lax

supervision, the trial court has aptly
remarked:jgc:chanrobles.com.ph

The minor errors charged against the appealed

decision do not suffice to overrule the findings
of negligence of both the driver and the
company, measured by the requirements of
ordinary diligence. Appellants complaint in
their brief, that the lower court applied the law
requiring carriers to observe extraordinary
diligence with respect to passengers, and not
ordinary diligence with respect to third parties
as in the present case, is without basis.
On the question of damages, the trial court
properly took into account that the late Jovito
Bonifacio, Sr., was already a successful
businessman when his life was cut short, at the
age of 49, by the highway accident. He was
treasurer of Bonifacio Bros., Inc., a firm owned
by himself and his brother, and which is
engaged in the business of repairing motor
vehicles. The assets of said firm in 1962 were
worth P1,059,754.53; it had 102 employees
receiving a salary of P1,800.00 or more, per
annum; in 1963, its assets were worth
P995,885.78 (Exhibits "KK-2" & "KK-3"). In
April, 1963, the deceased founded J. Bonifacio
Bros., Inc., which also engaged in the same
line of business, with principal office at 267 P.
Casal, Manila, and of which he was president at
,the time of his demise. The deceased had a

39
net income of P33,738.62 and P24,000.00 in
1962 and 1963, respectively. 2 The lower
court, therefore, fairly assessed that, had he
lived to the age of 55, he would have earned a
total net income of P144,000.00. The six-year
life expectancy allowed by the trial court is
shorter than that shown by insurance mortality
tables, but the award was not appealed.
Bonifacios family incurred expenses of
P13,764.05, as follows; coffin P600.00;
burial lot P90.00; cost of publication of
death notices P720.00; tomb P4,850.00;
food and gasoline during vigil P1,782.00;
other expenses P500.00; compensation to a
private investigator to look into the record of
defendant driver Sergio de Luna P222.05;
and damage to Mercedes Benz car, not covered
by insurance P5,000.00.
Defendants-appellants question the actual and
litigation expenses because they were paid by
the firm J. Bonifacio Bros., Inc., arguing that
said firm, not the plaintiffs, has the right to
claim the damages by virtue of subrogation,
per Articles 1302 and 1303 of the Civil Code.
This is a defense that, even if true (which we
need not rule upon) should have been invoked
in the court below, and its interposition comes
too late on appeal. Moreover, such a technical
defense deserves scant consideration, because
the firm is a family corporation and a
subrogation of parties will neither diminish the
expenses nor exculpate defendants-appellants
from liability therefor.
Plaintiff-appellee Rosario Santos Vda. de
Bonifacio regained consciousness at the Manila
Sanitarium and Hospital. She suffered a
lacerated wound in the frontal region of her
head, contusion on the left side of her face,
fracture of the distal portion of her left ulna
and dislocation of the left femur. She was
confined in the hospital from 27 February 1964
to 15 March 1964. Her hospital bills and
compensation for special nurses amounted to
P1,658.48. During her confinement, she failed
to receive her salary, amounting to P608.00.
Driver Alberto Concepcion of the Mercedes
Benz car, sustained compound fractures; his
right foot was in a plaster cast for six (6)
months and one (1) week; his left leg was
under traction and hanging for two (2) weeks,

his left hip-bone dislocated. He was confined in

the hospital for one (1) month and four (4)
days. Up to the time the lower court rendered
its decision on 30 July 1966, Concepcion had to
go in crutches to the hospital, for treatment.
His medical expenses amounted to P1,777.21.
As a driver of the deceased Jovito Bonifacio,
Sr., he was paid a weekly salary of P50.00,
with free meals, which remuneration may be
estimated to be P4,000.00 yearly (T.s.n., 22
October 1964, page 10) . He was 40 years old
at the time of the accident and there is no
indication as to when he would be able to drive
again. If he would be permanently
incapacitated from driving again, he may, in
the future, be able to find a different calling or
gainful occupation. The award of P15,000.00,
as compensatory damages, is fair and
reasonable.
Agustin Angeles suffered a broken right wrist,
a crack in the top left part of his head, sunken
left eye, and a wound in the left cheek. He
regained consciousness at the hospital only
after 11 days from the time of the accident. He
was confined for 18 days, and billed for
P1,097.98. Due to the accident, his memory
and vision were impaired; he now walks with a
cane; his bowel movement and urination are
now abnormal and irregular; he cannot freely
move his right arm. He was 76 years old at the
time of the accident, but despite his age, he
used to repair watches, with an suffrage
monthly income of P250.00. He cannot repair
watches anymore. The lower court granted him
compensatory damages for P3,000.00.
For their shock, worry and anguish, the court
below awarded moral damages to the
plaintiffs-members of the family of the
deceased Jovito Bonifacio, Sr. in the sum of
P20,000.00; to Rosaria Santos Vda. de
Bonifacio, the sum of P10,000.00; to Alberto
Concepcion and Agustin Angeles, the sum of
P5,000.00 each. It also granted the family
group and each of the aforenamed plaintiffs
P5,000.00, as exemplary damages. The
quantum of moral and exemplary damages
thus awarded is not unconscionable, as
appellants aver, but are justified, considering
all the circumstances of the case.
Interest on the various damages at 6% per
annum since the filing of the suit was also

40
awarded, despite the lack of prayer for interest
in the plaintiffs complaint. The grant of
interest is not necessarily error, for under the
Civil Code
"ART. 2211. In crimes and quasi-delicts,
interest as a part of the damages may, in a
proper case, be adjudicated in the discretion of
the court."cralaw virtua1aw library
The findings and conclusions of negligence on
the part of the defendants-appellants, and not
on the part of the plaintiffs-appellees, show the
lack of merit of the last assignment of error
about the denial of appellants counterclaim for
the fees of their own counsel.
Appellants stress that the trial court should be
held disqualified because the counsel for
plaintiffs-appellees had been a classmate of
the trial judge. Admittedly, this is not a legal

ground for disqualification. To allow it would

unnecessarily burden other trial judges to
whom the case would be transferred.
Ultimately, confusion would result, for under
the rule advocated, a judge would be barred
from sitting in a case whenever one of his
former classmates (and he could have many)
appeared. Nor have the appellants successfully
shown here that bias distorted the judgment or
conduct of the challenged trier of the case.
That he should question defense witnesses
more closely than those of the plaintiffs is but
natural, since defendants evidence varies from
proof already on record. A desire to get at the
truth is no proof of bias or prejudice.
FINDING NO REVERSIBLE ERROR, the decision
appealed from is hereby affirmed. Costs
against the appellants.