THIRD DIVISION
After two days, the opening in her wound widened. Her husband brought her to the Bongabon
G.R. No. 203080, November 12, 2014
DR. IDOL L. BONDOC, Petitioner, v. MARILOU R. MANTALA, Respondent.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari assailing the Decision1 dated May 24, 2012 and
Resolution2 dated August 14, 2012 of the Court of Appeals (CA) in CA-G.R. SP No. 120563. The
CA affirmed the Decision3 dated August 12, 2010 and Order4 dated February 28, 2011 of the
Office of the Deputy Ombudsman for Luzon in OMB-L-A-09-0681-K.
The Facts
On November 6, 2009, Marilou R. Mantala (respondent) filed a complaint for grave misconduct
against Dr. Idol L. Bondoc (petitioner), Medical Officer III at the Oriental Mindoro Provincial
Hospital (OMPH).
Respondent was admitted at the OMPH on April 3, 2009, at around 11:00 in the morning, with
referral5 from the Bansud Municipal Health Office (BMHO). She was due to deliver her fifth child
and was advised by the BMHO for a cesarean section because her baby was big and there was
excessive amniotic fluid in her womb. She started to labor at 7:00 in the morning and was initially
brought to the Bongabon Health Center. However, said health center also told her to proceed
directly to the hospital.
In her complaint-affidavit,6 respondent alleged that inside the delivery room of OMPH, she was
attended to by petitioner who instructed the midwife and two younger assistants to press down on
respondent's abdomen and even demonstrated to them how to insert their fingers into her vagina.
Thereafter, petitioner went out of the delivery room and later, his assistants also left. As she labored
in pain, she felt the movement of her baby inside her womb and the intermittent stiffening of her
abdomen.
At about 4:00 in the afternoon, petitioner returned to the delivery room and asked her, "Hindi ka pa
nanganganak?" Since she could no longer bear the pain, she requested petitioner to perform a
cesarean section but this was not done. The midwife arrived and berated her for not yet sleeping
and holding on to the steel bar. The midwife and the younger assistants again pressed down on her
abdomen causing excruciating pain on her ribs and made her very weak. They repeatedly did this
pressing until the baby and placenta came out. When she regained consciousness, she was already
at the recovery room. She learned that an operation was performed on her by petitioner to remove
her ruptured uterus but what depressed her most was her stillborn baby and the loss of her
reproductive capacity. The next day, she was transferred to a ward. She noticed her very swollen
vulva and her surgical wound open with liquid squirting from it. Her wound was regularly cleaned
by a nurse. On April 9, 2009, she was discharged notwithstanding that the suture on her wound
needs to be fixed and she still has a cough. At home, she took the antibiotics, cough medicine and
multivitamins prescribed by petitioner.
Community Hospital but they were advised to have her wound re-stitched by the same surgeon
(petitioner) who operated on her. Thus, on April 14, 2009, they went back to OMPH. She was
attended to by a certain Dr. Gonzales who cleaned her wound which now has a lot of pus, and the
said doctor commented that "problema ito ni Bondoc." On April 18, 2009, after she was given
blood transfusion, petitioner re-stitched her wound. Thereafter, it was Dr. Gonzales who regularly
checked on her condition.
On April 27, 2009, petitioner removed the sutures but still left open three of them. She wondered
then why petitioner suddenly showed kindness towards her. In the evening of April 28, 2009,
petitioner talked to her and said in a threatening tone "Ikaw ang sadyang ayaw magpa-cs" and also
told her that he just came from Pinamalayan and Bansud and already talked to Dr. Atienza and Dr.
Sales. Petitioner then told the nurse on duty, "Papirmahin mo si Mantala, pauuwiin ko na 'yan
bukas. Tanggalin mo na rin ang tahi." He further said, "huwag sana akong idemanda ni Mantala
kasi kaya ko siyang baligtarin" The following day, she was discharged after the nurse had removed
the remaining sutures. At home, it was her sister who cleaned the still open wound.
Joel F. Mantala, respondent's husband, and her sisters Mylen R. Amistad and Lucia Rala, executed
their respective affidavits7 to corroborate her story. In addition, respondent submitted the affidavit
of Dr. Rosinico F. Fabon, the anesthesiologist on duty during the operation performed by petitioner
on April 3, 2009.
Joel Mantala claimed that at the OMPH at around 2:30 in the afternoon when her wife was still
laboring, petitioner talked to him and told her that the baby is too big and if it comes out alive it
will probably be abnormal so that it would be better if the baby is stillborn. He further averred that
despite the pleas of her wife for a cesarean operation, petitioner insisted on a normal delivery
during which she almost died.8
On the other hand, Dr. Fabon narrated that in the afternoon of April 3, 2009, he was attending to a
patient being operated on by petitioner when he heard the latter saying that "meron pa nga kami sa
DR macrosomia, polyhydramnios pa, pero paanakin na lang 'yon, abnormal din naman ang bata
kahit mabuhay, kawawa lang siya" After the operation, petitioner went out of the Operating Room
(OR) and proceeded towards the direction of the OB ward. At 5:35 in the afternoon, a Request for
Surgery[9 was forwarded to the OR for Emergency Pelvic Laparotomy of respondent with a
diagnosis of T/C Ruptured Uterus.
When respondent was brought to the OR at 8:15 p.m., Dr. Fabon found her conscious but very
weak and pale, with abdominal pain and tenderness on very slight palpation. He then heard from
petitioner himself that it was the same patient he was referring to earlier with a diagnosis of
macrosomia, polyhydramnios. Petitioner volunteered that respondent had just delivered her baby
but that her uterus probably ruptured in the process of childbirth. "Pinilit no 'ng tatlong ungas, ayon
lumusot pero patay ang bata, tapos Ho, mukhang pumutok" petitioner said.
Dr. Fabon immediately prepared respondent for General Anesthesia; respondent was inducted at
8:35 p.m. while surgery began at 8:45 p.m. He continued to narrate what transpired next and his
observations, as follows:
1
That right after induction - when patient was asleep already and don't feel any pain at all - her blood
pressure suddenly dropped to 70/40 mmHg;
That after opening the abdomen, I saw massive hemoperitonium and the ruptured uterus with
bleeding from various directions. I immediately requested for additional blood to be used intra-
operatively while at the same time I established another intravenous line so as to cope with on-
going surgical blood loss. I had now three big-bore fast-dripping IV lines.
That in spite of this measure, blood pressure dropped to 50/30 mmHg. There was an instance
wherein I cannot even appreciate the blood pressure of the patient, her pulse hardly noticeable on
palpation and she was very pale that necessitates turning the anesthetic gas off so as to keep her
alive. She was given a dose of Atropine after patient did not respond to two l0mg doses of
Ephedrine. I prescribed Dobutamine and Dopamine drips to help improve her blood pressure and
maintain adequate urine output. Unfortunately, only Dopamine was available. I had to use 100%
Oxygen at 3L/minute without mixture of volatile gas for several minutes. She was maintained using
muscle relaxants alone on controlled ventilation.
That Dr. Bondoc operated on the patient all by himself without the help of a consultant or an
assistant surgeon. Nowhere in the patient chart will show that he referred this case to his consultant;
one thing that I was wondering why he was doing the surgery alone. He utilized the scrub nurse to
assist him making a delicate and bloody surgery more bloody and difficult.
That after Dr. Bondoc had removed the ruptured uterus and the bleeding was controlled, he made
intra-operative referral to Dr. Ariel Tria, a resident surgeon, to check on the urinary bladder and the
ureters.
That the operation performed was Subtotal Hysterectomy with Unilateral Salpingooophorectomy. I
noticed that the operation technique was different from that which Dr. Bondoc had written in the
Surgical Memo and that the patient did not tolerate the procedure well.
That the patient was very pale after the procedure with low blood pressure due to massive blood
loss. That her blood pressure started to improve at the Recovery Room but the pulse rate remained
considerably high for several hours. Her urine output was inadequate and that it had to be
maintained using Dopamine.
That when Leo Reyes, the Recovery Room nurse, referred the patient to me and I checked the
urinary catheter, I noticed her vagina to be massively swollen with hematomas all over.
That the patient had to be referred to Internal Medicine for co-management[.]
That Marilou Mantala stayed in the Recovery Room for almost eleven (11) hours. She was
transferred to Gyne Ward at 9:20 AM the following day.10
In his counter-affidavit,11 petitioner averred that when respondent was brought to OMPH with
referral form from BMHO, she had been in labor for more than twelve (12) hours at home. He
submitted his admitting diagnosis of the patient, "Gravida 5 Parity 4 (4004) Pregnancy Uterine 38
to 39 Weeks Age of Gestation by Last Menstrual Period Cephalic in Labor; Macrosomia; Fetal
Death in Utero."
Petitioner alleged that during his interview with respondent, the latter admitted to him that she
doesn't want to be confined at any hospital because she was afraid to be handled by medical
doctors. Instead, she went to a traditional birth attendant (TBA) or "hilot which she voluntarily
named as Apolonia Salcedo, residing at Dalapian, Labasan, Bongabon, Oriental Mindoro.
Respondent clearly defied the advice of Drs. Theresa Atienza and Mario Sales not to give birth at
home. As to her swollen vulvar hematoma which was noticed by Dr. Fabon, it was the result of
prolonged labor.
As to the charge that he abandoned the respondent to his assistants, petitioner claimed that between
12 noon and 2:00 o'clock in the afternoon, he was busy checking on pregnant patients at the out-
patient department (OPD) of OMPH until he was called for his first cesarean section (CS). Later at
4:00 o'clock, without resting and having lunch, he visited respondent and other admitted patients at
the delivery room. Together with the nurse on duty, Mrs. Evelyn D. Morales, petitioner said he
explained to respondent her and her baby's condition based on the referral from BMHO
(polyhydramnios) and initial findings that her abdomen and baby were big and the baby's heartbeat
is not appreciated. He presented the respondent with two options: have a normal delivery or
undergo cesarean section, and the consequences of each choice. Respondent chose the former
believing that she can handle this childbirth at home, and petitioner respected her decision.
After seeing other patients at the delivery room, petitioner was called for his second CS that day.
Thus, he was obliged to proceed to the OR and left the respondent under the care of three assistants,
one of whom is an experienced midwife. That he was not the one who attended to the, respondent
during her delivery is confirmed by the statements of respondent herself, Dr. Fabon and Mrs.
Morales. Further, petitioner claimed it has been a long-time practice at OMPH that whenever the
doctor is at the OR, the experienced midwives will take over the delivery of laboring patients.
Petitioner blamed respondent for risking her own life in not seeking immediately a higher level of
medical care and instead preferring a TBA who is prohibited under a 2006 provincial circular to
handle deliveries at home. He emphasized that upon admission the fetal heart tone is no longer
appreciated and maintained that diligent care was extended to respondent during her stay at OMPH.
As to the complications like cough and wound dehiscence, he explained that these were the effects
of anesthesia and surgery (loss of blood, massive blood transfusion and intravenous fluid infusion),
and also poor compliance with prescribed medication. He further asserted that he had referred the
patient to other co-doctors on duty like Dr. Romy Lomio (Internal Medicine) for co-management.
On April 23, 2010, petitioner submitted a manifestation that he had resigned as Medical Officer of
OMPH effective March 5, 2010. He thus posited that the administrative case is now rendered moot
and academic.
On August 12, 2010, the Office of the Deputy Ombudsman for Luzon rendered a Decision finding
the petitioner administratively liable. It held that by fully entrusting to his subordinates the task of
handling respondent's complicated delivery, petitioner exhibited an improper or wrongful conduct
and dereliction of duty as medical practitioner. Being the most competent person who should have
rendered the appropriate medical service to respondent, petitioner should have personally attended
to the latter. Such action or inaction of his part amounts to intentional or willful neglect in
discharging his sworn duty as a government physician which is also equivalent to misconduct in
2
office. The administrative case filed against the respondent is also not rendered moot by his
subsequent resignation in office.
The Decision of the OMB thus decreed:
WHEREFORE, judgment is hereby rendered finding respondent Medical Officer Idol L. Bondoc of
Oriental Mindoro Provincial Hospital (OMPH), Barangay Ilaya, Calapan City, Oriental Mindoro,
guilty of Grave Misconduct.
Respondent Idol L. Bondoc is hereby meted the penalty of DISMISSAL in the Government Service
pursuant to Section 10, Rule III, Administrative Order No. 07, as amended by Administrative Order
No. 17, in relation to Section 25 of Republic Act No. 6770. The penalty of dismissal shall carry
with it that of cancellation of eligibility, forfeiture of the retirement benefits, and the perpetual
disqualification for reemployment in the government service pursuant to Section 58, Rule IV of the
Uniform Rules on Administrative Cases in the Civil Service.
The Honorable Governor of the Province of Oriental Mindoro, is hereby directed to implement this
DECISION immediately upon receipt thereof pursuant to Section 7, Rule III of Administrative
Order No. 7, as amended by Administrative Order No. 17 (Ombudsman Rules of Procedure) in
relation to Memorandum Circular No. 1, series of 2006 dated 11 April 2006 and to promptly inform
this Office of the action taken hereon.
SO DECIDED.12
The foregoing ruling was affirmed by the CA and petitioner's motion for reconsideration was
denied.
The CA concurred that petitioner should have chosen to stay in the delivery room and personally
attend to the patient as he is the most competent person to render medical service in view of
respondent's critical condition. It likewise faulted the petitioner for deliberately leaving the laboring
and unstable respondent to the care of his inexperienced subordinates at the time she was about to
give birth. As to petitioner's excuse that he had to attend to an equally important cesarean operation,
the CA said there was no sufficient showing of the latter's urgency and assuming it to be true, still,
petitioner should have exerted efforts to refer respondent's case to another competent doctor or one
of his consultants.
Petitioner is now before this Court arguing that the CA erred in affirming the Ombudsman's ruling
that he is guilty of grave misconduct and imposing on him the penalty of dismissal from the service.
He reiterates that his failure to attend to respondent was not without justification and that in the
seven years he had been a medical officer of OMPH, he has dutifully observed the sworn duties of
the medical profession and would not neglect his responsibilities nor commit misconduct at the risk
of his medical career which he had nurtured through the years.
The petition has no merit.
Misconduct is defined as a transgression of some established and definite rule of action, more
particularly, unlawful behavior or gross negligence by a public officer,13 a forbidden act, a
dereliction of duty, willful in character, and implies wrongful intent and not mere error in
judgment.14 It generally means wrongful, improper or unlawful conduct motivated by a
premeditated, obstinate or intentional purpose. The term, however, does not necessarily imply
corruption or criminal intent. To constitute an administrative offense, misconduct should relate to or
be connected with the performance of the official functions and duties of a public officer. On the
other hand, when the elements of corruption, clear intent to violate the law or flagrant disregard of
established rule are manifest, the public officer shall be liable for grave misconduct.15
In this case, both the Ombudsman and CA found the petitioner guilty of grave misconduct in failing
to attend to respondent when she was having prolonged difficult labor and vaginal delivery after
being diagnosed with macrosamia and polyhydramnios.
Polyhydramnios is an abnormal condition occurring in pregnancy, characterized by excessive
amniotic fluid (the fluid surrounding the baby in the uterus). Apart from protecting the baby from
any external impact by providing a cushioning effect, the clear or slightly yellowish fluid plays a
vital role in proper fetal development as well. However, increased levels of the fluid can cause
various complications during different stages of pregnancy and childbirth.16 Intra-amniotic
pressure is markedly elevated in most patients with severe hydramnios. The incidence of cesarean
section is also increased as a result of unstable lie and placental abruption, which may occur with
the rapid decrease in intrauterine pressure that accompanies membrane rupture.17
One of the known causes and risk factors of polyhydramnios is fetal macrosomia (having a baby
too large for the gestational age).18
According to medical authorities, a macrosomic infant poses a different set of complications. The
incidences of shoulder dystocia,19 birth injuries, perinatal death, and low Apgar scores are
increased in macrosomic infants.20 In these cases, careful attention to the patient, potential risk
factors, clinical progress, and fetal size should allow obstetricians to reduce the occurrence of
maternal and neonatal morbidity.21 Vaginal delivery of the macrosomic infant is associated with an
increased incidence of birth trauma. The question whether to perform cesarean section thus
arises.22
If the estimated fetal weight is 4000 to 4500 g by ultrasonography and the patient has a clinically
adequate pelvis, labor may be allowed. If labor is protracted or the second stage is prolonged, a
cesarean section would avoid the possible trauma of a difficult vaginal delivery. Because of the
greater morbidity associated with infants who weigh more than 4500 g, elective cesarean section is
warranted.23
On the other hand, prolonged labor may culminate in obstructed labor, and is associated with
maternal infection, uterine rupture and postpartum hemorrhage.24
As per the admitting diagnosis[25 submitted by petitioner, the latter was aware of macrosomia and
the fetal heartbeat not appreciated. He also maintains that respondent's baby was already dead due
to prolonged labor but she had insisted on having a normal delivery. However, this claim is belied
by the sworn statements of respondent, her husband and her sisters, all of whom averred that they
requested for a cesarean section as per the advice given by Dr. Atienza who examined her in March
2009, and as confirmed at the Bansud Health Center where she was told that it would be risky for
her to have a normal delivery. Moreover, Joel Mantala asserted that what petitioner said to him was
3
that the baby was too big and if born alive it would probably have abnormalities so it would be
better that the baby is stillborn.
The Court is more inclined to believe respondent's version which was duly corroborated by Dr.
Fabon who heard petitioner saying that: "Meron pa nga kami sa DR macrosomnia, polyhydramnios
pa, pero paanakin na long 'yon. Abnormal din naman ang bata kahit mabuhay." This puts into doubt
petitioner's supposed finding that the baby was already dead upon respondent's admission at OMPH
and that it was respondent who insisted on a normal delivery. Even assuming that petitioner had
actually confirmed intrauterine fetal death, this only aggravates the patient's condition and it was
incumbent upon petitioner as the obstetrician on duty to personally attend to her and render
appropriate management or treatment.
In deliberately leaving the respondent to a midwife and two inexperienced assistants despite
knowing that she was under prolonged painful labor and about to give birth to a macrosomic baby
by vaginal delivery, petitioner clearly committed a dereliction of duty and a breach of his
professional obligations. The gravity of respondent's condition is highlighted by the expected
complications she suffered - her stillborn baby, a ruptured uterus that necessitated immediate
surgery and blood transfusion, and vulvar hematomas.
Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in the Philippines
states:
A physician should attend to his patients faithfully and conscientiously. He should secure for them
all possible benefits that may depend upon his professional skill and care. As the sole tribunal to
adjudge the physician's failure to fulfill his obligation to his patients is, in most cases, his own
conscience, violation of this rule on his part is discreditable and inexcusable.26
A doctor's duty to his patient is not required to be extraordinary. The standard contemplated for
doctors is simply the reasonable average merit among ordinarily good physicians, i.e. reasonable
skill and competence.27 Even by this standard, petitioner fell short when he routinely delegated an
important task that requires his professional skill and competence to his subordinates who have no
requisite training and capability to make crucial decisions in difficult childbirths.
Petitioner's proffered excuse that it was the practice in OMPH to allow midwives to administer to
patients during deliveries, is unacceptable. No proof of such alleged hospital practice such as an
official written directive was presented. Besides, it is doubtful whether hospital administrators
would remedy personnel shortage by permitting inexperienced staff, by themselves, to handle
laboring patients with high-risk pregnancies and maternal/fetal complications.
As to the two other scheduled CS performed by petitioner on the same day, this will not exculpate
him from administrative liability. As correctly pointed out by the CA, there was no showing of
similar urgency in the said operations, and petitioner could have referred respondent to another
competent physician. He could have likewise arranged for adjustment in the operation schedules
considering that his personal attention and management is urgently needed in respondent's difficult
and complicated delivery. But there is no indication in the records that petitioner duly informed or
referred the matter to the other doctors or the administrators of OMPH.
We therefore hold that the CA correctly affirmed the Ombudsman in finding the petitioner guilty of
grave misconduct. His violation of the sworn duty to attend to his patients faithfully and
conscientiously is inexcusable. Such flagrant disregard of established rule and improper conduct
were proven by substantial evidence.
Not only did petitioner routinely delegate his responsibility to his subordinates, he casually
instructed them to press down repeatedly on respondent's abdomen, unmindful of her critical
condition as borne out by his very own findings. Worse, petitioner haughtily and callously spoke of
respondent's case to the other doctors and medical staff while performing a CS after he had briefly
attended to her at the delivery room "...paanakin na long 'yon, abnormal din naman ang bata kahit
mabuhay, kawawa lang siya." Such insensitive and derisive language was again heard from the
petitioner when he referred for the second time to respondent's traumatic delivery, saying that:
"Pinilit no 'ng tatlong ungas, ayon lumusot pero patay ang bata, tapos ito, mukhang pumutok" As a
government physician, petitioner's demeanor is unbecoming and bespeaks of his indifference to the
well-being of his patients.
Petitioner thus not only committed a dereliction of duty, but also transgressed the ethical norms of
his profession when he failed to render competent medical care with compassion and respect for his
patient's dignity.
A physician should be dedicated to provide competent medical care with full professional skill in
accordance with the current standards of care, compassion, independence and respect for human
dignity.28 (Italics supplied.)
Finally, we find no merit in petitioner's argument that the CA should have at least considered as
mitigating circumstances his being a first offender,29 his 16 years in government service, and that
he had not acted in bad faith and with clear intent to violate the law and established rules.
Jurisprudence is replete with cases declaring that a grave offense cannot be mitigated by the fact
that the accused is a first time offender or by the length of service of the accused.30 While in most
cases, length of service is considered in favor of the respondent, it is not considered where the
offense committed is found to be serious or grave.31 In Medina v. Commission on Audit,32 the
Court stressed that dishonesty and grave misconduct have always been and should remain anathema
in the civil service. They inevitably reflect on the fitness of a civil servant to continue in office.
When an officer or employee is disciplined, the object sought is not the punishment of such officer
or employee but the improvement of the public service and the preservation of the public's faith and
confidence in the government.
WHEREFORE, the petition is DENIED for lack of merit. The Decision dated May 24, 2012 and
Resolution dated August 14, 2012 of the Court of Appeals in CA-G.R. SP No. 120563 are
AFFIRMED and UPHELD.
With costs against the petitioner.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
4
 Manila
THIRD DIVISION
G.R. No. 192973 September 29, 2014
PEDRITO DELA TORRE, Petitioner,
vs.
DR. ARTURO IMBUIDO, DRA. NORMA IMBUIDO in their capacity as owners and
operators of DIVINE SPIRIT GENERAL HOSPITAL and/or DR. NESTOR PASAMBA,
Respondents.
RESOLUTION
REYES, J.:
This resolves the petition for review on certiorari1 filed by petitioner Pedrito Dela Torre (Pedrito)
assailing the Decision2 dated December 15, 2009 and Resolution3 dated July 27, 2010 of the Court
of Appeals (CA) in CA-G.R. CV No. 78534.
The case stemmed from a complaint4 for damages filed by Pedrito against herein respondents Dr.
ArturoImbuido and Dr. Norma Imbuido (Dr. Norma), in their capacity as the ownersand operators
of the Divine Spirit General Hospital in Olongapo City, and Dr. Nestor Pasamba (Dr. Nestor)
(respondents). Pedrito alleged in his complaint that he was married to one Carmen Castillo Dela
Torre(Carmen), who died while admitted at the Divine Spirit General Hospital on February 13,
1992. Carmen was due to give birth on February 2,1992 and was brought at around 11:30 p.m. on
that day by Pedrito to the Divine Spirit General Hospital. When Carmen still had not delivered her
baby at the expected time, Dr. Norma discussed with Pedrito the possibility of a caesarean section
operation.5
At around 3:00 p.m. on February 3, 1992, Carmen was brought to the hospital’s operating room for
her caesarian section operation, which was to be performed by Dr. Nestor. By 5:30 p.m. of the same
day, Pedrito was informed of his wife’s delivery of a baby boy. In the early morning of February 4,
1992, Carmen experienced abdominal pain and difficulty in urinating. She was diagnosed to be
suffering from urinary tract infection (UTI), and was prescribed medications by Dr. Norma. On
February 10, 1992, Pedrito noticed that Carmen’s stomach was getting bigger, but Dr. Norma
dismissed the patient’s condition as mere flatulence (kabag).6
When Carmen’s stomach still grewbigger despite medications, Dr. Norma advised Pedrito of the
possibility of a second operation on Carmen. Dr. Norma, however, provided no detailson its
purpose and the doctor who would perform it. At around 3:00 p.m. on February 12, 1992, Carmen
had her second operation. Later in the evening, Dr. Norma informed Pedrito that "everything was
going on fine with [his] wife."7
The condition of Carmen, however, did not improve. It instead worsened that on February 13, 1992,
she vomited dark red blood. At 9:30 p.m. on the same day, Carmen died.8 Per her certificate of
death upon information provided by the hospital,the immediate cause of Carmen’s death was
"cardio-respiratory arrest secondary to cerebro vascular accident, hypertension and chronic
nephritis induced by pregnancy."9 An autopsy Report10 prepared by Dr. Richard Patilano(Dr.
Patilano), Medico-Legal Officer-Designate of Olongapo City, however, provided that the cause of
Carmen’s death was "shock due to peritonitis, severe, with multiple intestinal adhesions; Status post
C[a]esarian Section and Exploratory Laparotomy."
Pedrito claimed in his complaint that the respondents "failed to exercise the degree of diligence
required of them" as members of the medical profession, and were "negligent for practicing surgery
on [Carmen] in the most unskilled, ignorant and cruel manner, x x x[.]"11
In their answer12 to the complaint, the respondents argued that they "observed the required
standard of medical care in attending to the needs of Carmen."13 The respondents explained that
Carmen was admitted in Divine Spirit General Hospital for "pregnancy in labor and pre-eclampsia."
Her condition was closely monitored during her confinement. A caesarian section operation became
necessary, as she manifested no significant progress for the spontaneous delivery of her baby.14 No
unusual events were observed during the course of Carmen’s caesarian section operation. The
second surgery, however, became necessary due to suspected intestinal obstruction and adhesions.
This procedure was fully explained to Carmen and Pedrito prior to its conduct. During the second
operation, the diagnosis of intestinal obstruction and adhesion was confirmed but resolved by her
doctors. Despite the observance of due care by the doctors, however, Carmen died on February 13,
1992.15
The respondents included in their answer a counterclaim for ₱48,515.58 as unpaid hospital charges,
professional fees and medicines, ₱3,000,000.00 for moral damages, ₱1,500,000.00 for exemplary
damages, and attorney’s fees.16
After the pre-trial conference, trial proper ensued. To support his claim, Pedrito presented the
testimony of Dr. Patilano, the medicolegal officer who conducted an autopsy on the body of
Carmen upon a telephone request made by the City Health Officer of Olongapo City, Dr. Generoso
Espinosa. Among Dr. Patilano’s observations, as narrated in the lower court’s decision, were as
follows:
In the intestines, [Dr. Patilano] found outthat it was more reddish than the normal condition which
is supposed to bepinkish. There was presence of adhesions, meaning, it sticks to each other and
these areas were dilated. There were constricted areas. He concluded that there might have been
foreign organic matters in the intestines. He did not see any swelling but assuming that there was, it
would be concomitant to the enlargement. x x x He came to the conclusion that the cause of death
was peritonitis, with the multiple adhesions status in the post caesarian section. In connection with
peritonitis, this is the inflammation of the abdomen. This peritonitis in the abdominal cavity may be
caused by several conditions which are supposed to be infections, entrance of foreign bodies in the
intestines in connection with ruptured peptic ulcer or [may be] somewhere in the spleen. The
entrance of foreign object in the abdominal cavities may cause severe infections of the intra-
abdominal cavities resulting [in] multiple adhesions of the intestines. In cases of surgical operation,
it [may be] due to the conditions of the instruments used, the materials used in the operating room
being not aseptic and the ladies assisting the operation were not in uniform. x x x.17
Dr. Patilano claimed that peritonitis could have been prevented through proper medical procedures
and medicines. He also stated that if the cause of Carmen’s death was actually cerebro-vascular
5
accident, there would have been ruptured blood vessels and blood clot in her head; but there were
none in Carmen’s case.18
Among those who testified to refutePedrito’s claim was Dr. Nestor. He claimed that when Carmen
was referred to him on February 3, 1992, she was in full term uterine pregnancy, with pre-
eclampsia, fetal distress and active labor pains. A caesarian section operation became necessary to
terminate the pregnancy for her safety. Carmen was ready to go home four days after giving birth,
but was advised by the doctors to stay more because of her persistent hypertension.19
The second surgery performed on Carmen was necessary after she showed symptoms of intestinal
obstruction, which happens as the intestines get twisted due to adhesions and the normal flow of
intestinal contents are obstructed. For Dr. Nestor, this occurrence was not preventable since any
interference of the abdominal cavity would irritate the serosa of the intestines, inviting adhesions
that could cause obstruction. Surgery could remedy the adhesions and obstruction.20 Both Carmen
and Pedrito gave their written consent to this second procedure.21
Dr. Bienvenido G. Torres (Dr. Torres), Chief of the Medico-Legal Division of the Philippine
National Police (PNP) Crime Laboratory Service,22 also testified for the respondents.He claimed
that based on Dr. Patilano’s report, vital internal organs of Carmen, such as her brain, lungs,
kidneys, liver and adrenal glands, were not examined during the autopsy.23
On January 28, 2003, the Regional Trial Court (RTC) of Olongapo City, Branch 75, rendered its
Decision24 in favor of Pedrito. The trial court gave greater weight to the testimony of Dr. Patilano
and thus disposed of the case as follows:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and
against the defendants, ordering the latter to pay jointly and severally, the former, the following
sums of money, to wit:
1.) the sum of Php 28,759.46 as actual damages;
2.) the sum of Fifty Thousand (Php 50,000.00) Pesos as indemnity for the death of Carmen dela
Torre;
3.) the sum of Fifty Thousand (Php 50,000.00) Pesos as moral damages and the further sum of
Twenty Thousand (Php 20,000.00) Pesos as exemplary damages;
4.) the sum of Twenty Thousand (Php 20,000.00) Pesos as attorney’s fees; and
5.) the costs of [suit].
SO ORDERED.25
Dissatisfied with the RTC ruling, the respondents appealed to the CA. On December 15, 2009, the
CA rendered its Decision reversing and setting aside the decision of the RTC. For the appellate
court, it was not established that the respondents failed to exercisethe degree of diligence required
of them by their profession as doctors. The CA also granted the respondents’ counterclaim for the
amount of ₱48,515.58, as it held:
WHEREFORE, the Decision of the Regional Trial Court of Olongapo City dated January 28, 2003
in Civil Case No. 165-0-92 is hereby REVERSED AND SET ASIDE.
Plaintiff-appellee is directed to pay the unpaid balance for hospital bills, professional fees and other
expenses in the amount of [P]48,515.58.
SO ORDERED.26
Hence, this petition for review on certiorariin which Pedrito insists that the respondents should be
held liable for the death of Carmen.
The petition is denied.
"[M]edical malpractice or, more appropriately, medical negligence, is that type of claim which a
victim has available to him or her to redress a wrong committed by a medical professionalwhich
has caused bodily harm." In order to successfully pursue such a claim, a patient, or his or her family
as in this case, "must prove that a health care provider, in most cases a physician, either failed to do
something which a reasonably prudent health care provider would have done, or that he or she did
something that a reasonably prudent provider would not have done; and that failure or action caused
injury to the patient."27
The Court emphasized in Lucas, et al. v. Tuaño28 that in medical negligence cases, there is a
physician-patient relationship between the doctor and the victim, but just like in any other
proceeding for damages, four essential elements must be established by the plaintiff, namely: (1)
duty; (2) breach; (3) injury; and (4) proximate causation. All four elements must be present in order
to find the physician negligent and, thus, liable for damages.29
It is settled that a physician’s duty tohis patient relates to his exercise of the degree of care, skill and
diligence which physicians in the same general neighborhood, and in the same general line of
practice, ordinarily possess and exercise in like cases. There is breach of this duty when the patient
is injured in body or in health. Proof of this breach rests upon the testimony of an expert witness
that the treatment accorded to the patient failed to meet the standard level of care, skill and
diligence. To justify an award of damages, the negligence of the doctor must be established to be
the proximate cause of the injury.30
Through the instant petition, Pedritoseeks the reinstatement of the decision of the RTC whose
finding of the respondents’ medical negligence depended mainly on the testimony of Dr. Patilano.
Upon review, however, the Court agrees with the CA that the report and testimony of Dr. Patilano
failed to justify Pedrito’s entitlement to the damages awarded by the RTC.
For the trial court to give weightto Dr. Patilano’s report, it was necessary to show first Dr.
Patilano’s specialization and competence to testify on the degree of care, skill and diligence needed
for the treatment of Carmen’s case. Considering that it was not duly established that Dr. Patilano
practiced and was an expert inthe fields that involved Carmen’s condition, he could not have
accurately identified the said degree of care, skill, diligence and the medical procedures that should
have been applied by her attending physicians.
6
Similarly, such duty, degree of care, skill and diligence were not sufficiently established in this case
because the testimony of Dr. Patilano was based solely on the results of his autopsy on the cadaver
of Carmen. His study and assessment were restrictedby limitations that denied his full evaluation of
Carmen’s case. He could have only deduced from the injuries apparent in Carmen’s body, and in
the condition when the body was examined. Judging from his testimony, Dr. Patilano did not even
take full consideration of the medical history of Carmen, her actual health condition at the time of
hospital admission, and her condition as it progressed while she was being monitored and treated by
the respondents. There was also no reference to the respondents’ defense that the emergency
caesarian section operation had to be performed in order to protect the lives and safety of Carmen
and her then unborn child. For lack of sufficient information on Carmen’s health condition while
still alive, Dr. Patilano could not have fully evaluated the suitability of the respondents’ decisions in
handling Carmen’s medical condition as it turned critical.
On the other hand, the CA pointed out that Dr. Nestor, a surgeon, possessed the reasonable degree
of learning, skill and experience required by his profession for the treatment ofCarmen. The
respondents also emphasized in their pleadings beforethe RTC that Dr. Nestor had his training and
experience in surgery and obstetrics since 1970.1âwphi1 Without sufficient proof from the claimant
on a different degree of care, skill and diligence that should be expected from the respondents, it
could not be said with certainty that a breachwas actually committed.
Moreover, while Dr. Patilano opined that Carmen died of peritonitis which could be due to the poor
state of the hospital equipment and medical supplies used during her operation, there was no
sufficient proof that any such fault actually attended the surgery of Carmen, caused her illness and
resulted in her death. It is also significant that the Chief of the Medico-Legal Division of the PNP
Crime Laboratory Service, Dr. Torres, testified before the trial court that based on the autopsy
report issued by Dr. Patilano, the latter did not comply with the basic autopsy procedure when he
examined the cadaver of Carmen. Dr. Patilano did not appear to have thoroughly examined
Carmen’s vital organs such as her heart, lungs, uterus and brain during the autopsy. His findings
were then inconclusive on the issue of the actual cause of Carmen's death, and the claim of
negligence allegedly committed by the respondents.
As the Court held in Spouses Flores v. Spouses Pineda, et al.,31 the critical and clinching factor in a
medical negligence case is proof of the causal connection between the negligence and the injuries.
The claimant must prove not only the injury but also the defendant's fault, and that such fault
caused the injury. A verdict in a malpractice action cannot be based on speculation or conjecture.
Causation must be proven within a reasonable medical probability based upon competent expert
testimony,32 which the Court finds absent in the case at bar. As regards the respondents'
counterclaim, the CA's award of ₱48,515.58 is sustained, considering that among the parties'
stipulations during the pre-trial indicated:
5. That at the time of the death of the patient Carmen C. dela Torrell there was an unpaid balance
for hospital bills, professional fees and other expenses in the amount of ₱48,515.58, incurred by
plaintiff when the patient was confined at said hospital from February 3 to 13, 1992.33
WHEREFORE, the petition is DENIED. The Decision dated December 15, 2009 and Resolution
dated July 27, 2010 of the Court of Appeals in CA-G.R. CV No. 78534 are AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-40570 January 30, 1976
TEODORO C. UMALI, petitioner,
vs.
HON. ANGEL BACANI, in his capacity as Presiding Judge of Branch IX of the Court of
First Instance of Pangasinan and FIDEL H. SAYNES, respondents.
Julia M. Armas for petitioner.
Antonio de los Reyes for private respondent.
ESGUERRA, J.:
Petition for certiorari to review the decision of the Court of First Instance of Pangasinan Branch IX,
in Civil Case No. U2412, entitled, "Fidel H. Saynes, plaintiff-appellee versus Teodoro C. Umali,
defendant-appellant", which found the death by electrocution of Manuel Saynes, a boy of 3 years
and 8 months, as "due to the fault or negligence of the defendant (Umali) as owner and manager of
the Alcala Electric Plant", although the liability of defendant is mitigated by the contributory
negligence of the parents of the boy "in not providing for the proper and delegate supervision and
control over their son The dispositive part of the decision reads as follows:
Wherefore, the Court hereby renders judgment in favor of the plaintiff by ordering the defendant to
pay to the plaintiff the sum of Five Thousand Pesos (P5,000.00) for the death of his son, Manuel
Saynes; the sum of One Thousand Two Hundred Pesos (P1,200.00) for actual expenses for and in
connection with the burial of said deceased child, and the further sum of Three Thousand Pesos
(P3,000.00) for moral damages and Five Hundred (P500.00) Pesos as reasonable attorney's fee, or a
total of Nine Thousand Seven Hundred (P9,700.00) Pesos, and to pay the costs of this suit. It Is So
Ordered.
Undisputed facts appearing of record are:
On May 14, 1972, a storm with strong rain hit the Municipality of Alcala Pangasinan, which started
from 2:00 o'clock in the afternoon and lasted up to about midnight of the same day. During the
storm, the banana plants standing on an elevated ground along the barrio road in San Pedro Ili of
said municipality and near the transmission line of the Alcala Electric Plant were blown down and
fell on the electric wire. As a result, the live electric wire was cut, one end of which was left
hanging on the electric post and the other fell to the ground under the fallen banana plants.
On the following morning, at about 9:00 o'clock barrio captain Luciano Bueno of San Pedro Iii who
was passing by saw the broken electric wire and so he warned the people in the place not to go near
7
the wire for they might get hurt. He also saw Cipriano Baldomero, a laborer of the Alcala Electric
Plant near the place and notified him right then and there of the broken line and asked him to fix it,
but the latter told the barrio captain that he could not do it but that he was going to look for the
lineman to fix it.
Sometime after the barrio captain and Cipriano Baldomero had left the place, a small boy of 3 years
and 8 months old by the name of Manuel P. Saynes, whose house is just on the opposite side of the
road, went to the place where the broken line wire was and got in contact with it. The boy was
electrocuted and he subsequently died. It was only after the electrocution of Manuel Saynes that the
broken wire was fixed at about 10:00 o'clock on the same morning by the lineman of the electric
plant.
Petitioner claims that he could not be liable under the concept of quasi-delict or tort as owner and
manager of the Alcala Electric Plant because the proximate cause of the boy's death electrocution
could not be due to any negligence on his part, but rather to a fortuitous event-the storm that caused
the banana plants to fall and cut the electric line-pointing out the absence of negligence on the part
of his employee Cipriano Baldomero who tried to have the line repaired and the presence of
negligence of the parents of the child in allowing him to leave his house during that time.
A careful examination of the record convinces Us that a series of negligence on the part of
defendants' employees in the Alcala Electric Plant resulted in the death of the victim by
electrocution. First, by the very evidence of the defendant, there were big and tall banana plants at
the place of the incident standing on an elevated ground which were about 30 feet high and which
were higher than the electric post supporting the electric line, and yet the employees of the
defendant who, with ordinary foresight, could have easily seen that even in case of moderate winds
the electric line would be endangered by banana plants being blown down, did not even take the
necessary precaution to eliminate that source of danger to the electric line. Second, even after the
employees of the Alcala Electric Plant were already aware of the possible damage the storm of May
14, 1972, could have caused their electric lines, thus becoming a possible threat to life and property,
they did not cut off from the plant the flow of electricity along the lines, an act they could have
easily done pending inspection of the wires to see if they had been cut. Third, employee Cipriano
Baldomero was negligent on the morning of the incident because even if he was already made
aware of the live cut wire, he did not have the foresight to realize that the same posed a danger to
life and property, and that he should have taken the necessary precaution to prevent anybody from
approaching the live wire; instead Baldomero left the premises because what was foremost in his
mind was the repair of the line, obviously forgetting that if left unattended to it could endanger life
and property.
On defendants' argument that the proximate cause of the victim's death could be attributed to the
parents' negligence in allowing a child of tender age to go out of the house alone, We could readily
see that because of the aforementioned series of negligence on the part of defendants' employees
resulting in a live wire lying on the premises without any visible warning of its lethal character,
anybody, even a responsible grown up or not necessarily an innocent child, could have met the
same fate that befell the victim. It may be true, as the lower Court found out, that the contributory
negligence of the victim's parents in not properly taking care of the child, which enabled him to
leave the house alone on the morning of the incident and go to a nearby place cut wire was very
near the house (where victim was living) where the fatal fallen wire electrocuted him, might
mitigate respondent's liability, but we cannot agree with petitioner's theory that the parents'
negligence constituted the proximate cause of the victim's death because the real proximate cause
was the fallen live wire which posed a threat to life and property on that morning due to the series
of negligence adverted to above committed by defendants' employees and which could have killed
any other person who might by accident get into contact with it. Stated otherwise, even if the child
was allowed to leave the house unattended due to the parents' negligence, he would not have died
that morning where it not for the cut live wire he accidentally touched.
Art. 2179 of the Civil Code provides that if the negligence of the plaintiff (parents of the victim in
this case) was only contributory, the immediate and proximate cause of the injury being the
defendants' lack of due care, the plaintiff may recover damages, but the courts shall mitigate the
damages to be awarded. This law may be availed of by the petitioner but does not exempt him from
liability. Petitioner's liability for injury caused by his employees negligence is well defined in par.
4, of Article 2180 of the Civil Code, which states:
The owner and manager of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on tile
occasion of their functions.
The negligence of the employee is presumed to be the negligence of the employer because the
employer is supposed to exercise supervision over the work of the employees. This liability of the
employer is primary and direct (Standard Vacuum Oil Co. vs. Tan and Court of Appeals, 107 Phil.
109). In fact the proper defense for the employer to raise so that he may escape liability is to prove
that he exercised, the diligence of the good father of the family to prevent damage not only in the
selection of his employees but also in adequately supervising them over their work. This defense
was not adequately proven as found by the trial Court, and We do not find any sufficient reason to
deviate from its finding.
Notwithstanding diligent efforts, we fail to fired any reversible error committed by the trial Court in
this case, either in its appreciation of the evidence on questions of facts or on the interpretation and
application of laws government quasi-delicts and liabilities emanating therefrom. The inevitable
conclusion is that no error amounting to grave abuse of discretion was committed and the decision
must be left untouched.
WHEREFORE, the decision of respondent Court dated June 27, 1974 is affirmed.
Costs against petitioner.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21749 September 29, 1967
REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,
8
 vs.
LUZON STEVEDORING CORPORATION, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee.
H. San Luis and L.V. Simbulan for defendant-appellant.
REYES, J.B.L., J.:
The present case comes by direct appeal from a decision of the Court of First Instance of Manila
(Case No. 44572) adjudging the defendant-appellant, Luzon Stevedoring Corporation, liable in
damages to the plaintiff-appellee Republic of the Philippines.
In the early afternoon of August 17, 1960, barge L-1892, owned by the Luzon Stevedoring
Corporation was being towed down the Pasig river by tugboats "Bangus" and "Barbero"1 also
belonging to the same corporation, when the barge rammed against one of the wooden piles of the
Nagtahan bailey bridge, smashing the posts and causing the bridge to list. The river, at the time,
was swollen and the current swift, on account of the heavy downpour of Manila and the
surrounding provinces on August 15 and 16, 1960.
Sued by the Republic of the Philippines for actual and consequential damage caused by its
employees, amounting to P200,000 (Civil Case No. 44562, CFI of Manila), defendant Luzon
Stevedoring Corporation disclaimed liability therefor, on the grounds that it had exercised due
diligence in the selection and supervision of its employees; that the damages to the bridge were
caused by force majeure; that plaintiff has no capacity to sue; and that the Nagtahan bailey bridge is
an obstruction to navigation.
After due trial, the court rendered judgment on June 11, 1963, holding the defendant liable for the
damage caused by its employees and ordering it to pay to plaintiff the actual cost of the repair of the
Nagtahan bailey bridge which amounted to P192,561.72, with legal interest thereon from the date
of the filing of the complaint.
Defendant appealed directly to this Court assigning the following errors allegedly committed by the
court a quo, to wit:
I — The lower court erred in not holding that the herein defendant-appellant had exercised the
diligence required of it in the selection and supervision of its personnel to prevent damage or injury
to others.1awphîl.nèt
II — The lower court erred in not holding that the ramming of the Nagtahan bailey bridge by barge
L-1892 was caused by force majeure.
III — The lower court erred in not holding that the Nagtahan bailey bridge is an obstruction, if not a
menace, to navigation in the Pasig river.
IV — The lower court erred in not blaming the damage sustained by the Nagtahan bailey bridge to
the improper placement of the dolphins.
V — The lower court erred in granting plaintiff's motion to adduce further evidence in chief after it
has rested its case.
VI — The lower court erred in finding the plaintiff entitled to the amount of P192,561.72 for
damages which is clearly exorbitant and without any factual basis.
However, it must be recalled that the established rule in this jurisdiction is that when a party
appeals directly to the Supreme Court, and submits his case there for decision, he is deemed to have
waived the right to dispute any finding of fact made by the trial Court. The only questions that may
be raised are those of law (Savellano vs. Diaz, L-17441, July 31, 1963; Aballe vs. Santiago, L-
16307, April 30, 1963; G.S.I.S. vs. Cloribel, L-22236, June 22, 1965). A converso, a party who
resorts to the Court of Appeals, and submits his case for decision there, is barred from contending
later that his claim was beyond the jurisdiction of the aforesaid Court. The reason is that a contrary
rule would encourage the undesirable practice of appellants' submitting their cases for decision to
either court in expectation of favorable judgment, but with intent of attacking its jurisdiction should
the decision be unfavorable (Tyson Tan, et al. vs. Filipinas Compañia de Seguros) et al., L-10096,
Res. on Motion to Reconsider, March 23, 1966). Consequently, we are limited in this appeal to the
issues of law raised in the appellant's brief.
Taking the aforesaid rules into account, it can be seen that the only reviewable issues in this appeal
are reduced to two:
1) Whether or not the collision of appellant's barge with the supports or piers of the Nagtahan
bridge was in law caused by fortuitous event or force majeure, and
2) Whether or not it was error for the Court to have permitted the plaintiff-appellee to introduce
additional evidence of damages after said party had rested its case.
As to the first question, considering that the Nagtahan bridge was an immovable and stationary
object and uncontrovertedly provided with adequate openings for the passage of water craft,
including barges like of appellant's, it is undeniable that the unusual event that the barge,
exclusively controlled by appellant, rammed the bridge supports raises a presumption of negligence
on the part of appellant or its employees manning the barge or the tugs that towed it. For in the
ordinary course of events, such a thing does not happen if proper care is used. In Anglo American
Jurisprudence, the inference arises by what is known as the "res ipsa loquitur" rule (Scott vs.
London Docks Co., 2 H & C 596; San Juan Light & Transit Co. vs. Requena, 224 U.S. 89, 56 L.
Ed., 680; Whitwell vs. Wolf, 127 Minn. 529, 149 N.W. 299; Bryne vs. Great Atlantic & Pacific Tea
Co., 269 Mass. 130; 168 N.E. 540; Gribsby vs. Smith, 146 S.W. 2d 719).
The appellant strongly stresses the precautions taken by it on the day in question: that it assigned
two of its most powerful tugboats to tow down river its barge L-1892; that it assigned to the task the
more competent and experienced among its patrons, had the towlines, engines and equipment
double-checked and inspected; that it instructed its patrons to take extra precautions; and concludes
that it had done all it was called to do, and that the accident, therefore, should be held due to force
majeure or fortuitous event.
These very precautions, however, completely destroy the appellant's defense. For caso fortuito or
force majeure (which in law are identical in so far as they exempt an obligor from liability)2 by
9
definition, are extraordinary events not foreseeable or avoidable, "events that could not be foreseen,
or which, though foreseen, were inevitable" (Art. 1174, Civ. Code of the Philippines). It is,
therefore, not enough that the event should not have been foreseen or anticipated, as is commonly
believed, but it must be one impossible to foresee or to avoid. The mere difficulty to foresee the
happening is not impossibility to foresee the same: "un hecho no constituye caso fortuito por la sola
circunstancia de que su existencia haga mas dificil o mas onerosa la accion diligente del presento
ofensor" (Peirano Facio, Responsibilidad Extra-contractual, p. 465; Mazeaud Trait de la
Responsibilite Civil, Vol. 2, sec. 1569). The very measures adopted by appellant prove that the
possibility of danger was not only foreseeable, but actually foreseen, and was not caso fortuito.
Otherwise stated, the appellant, Luzon Stevedoring Corporation, knowing and appreciating the
perils posed by the swollen stream and its swift current, voluntarily entered into a situation
involving obvious danger; it therefore assured the risk, and can not shed responsibility merely
because the precautions it adopted turned out to be insufficient. Hence, the lower Court committed
no error in holding it negligent in not suspending operations and in holding it liable for the damages
caused.
It avails the appellant naught to argue that the dolphins, like the bridge, were improperly located.
Even if true, these circumstances would merely emphasize the need of even higher degree of care
on appellant's part in the situation involved in the present case. The appellant, whose barges and
tugs travel up and down the river everyday, could not safely ignore the danger posed by these
allegedly improper constructions that had been erected, and in place, for years.
On the second point: appellant charges the lower court with having abused its discretion in the
admission of plaintiff's additional evidence after the latter had rested its case. There is an
insinuation that the delay was deliberate to enable the manipulation of evidence to prejudice
defendant-appellant.
We find no merit in the contention. Whether or not further evidence will be allowed after a party
offering the evidence has rested his case, lies within the sound discretion of the trial Judge, and this
discretion will not be reviewed except in clear case of abuse.3
In the present case, no abuse of that discretion is shown. What was allowed to be introduced, after
plaintiff had rested its evidence in chief, were vouchers and papers to support an item of P1,558.00
allegedly spent for the reinforcement of the panel of the bailey bridge, and which item already
appeared in Exhibit GG. Appellant, in fact, has no reason to charge the trial court of being unfair,
because it was also able to secure, upon written motion, a similar order dated November 24, 1962,
allowing reception of additional evidence for the said defendant-appellant.4
WHEREFORE, finding no error in the decision of the lower Court appealed from, the same is
hereby affirmed. Costs against the defendant-appellant.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-68102 July 16, 1992
GEORGE MCKEE and ARACELI KOH MCKEE, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO,
respondents.
G.R. No. L-68103 July 16, 1992
CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH
MCKEE, ANTONIO KOH and ELIZABETH KOH TURLA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO,
respondents.
DAVIDE, JR., J.:
Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-
G.R. CV Nos. 69040-41, promulgated on 3 April 1984, which set aside its previous Decision dated
29 November 1983 reversing the Decision of the trial court which dismissed petitioners' complaints
in Civil Case No. 4477 and Civil Case No. 4478 of the then Court of First Instance (now Regional
Trial Court) of Pampanga entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh Tuquero, Araceli
Koh McKee and Elizabeth Koh Turla vs. Jaime Tayag and Rosalinda Manalo," and "George
McKee and Araceli Koh McKee vs. Jaime Tayag and Rosalinda Manalo," respectively, and granted
the private respondents' counterclaim for moral damages, attorney's fees and litigation expenses.
The said civil cases for damages based on quasi-delict were filed as a result of a vehicular accident
which led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused physical
injuries to George Koh McKee, Christopher Koh McKee and petitioner Araceli Koh McKee.
Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh McKee
and the deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while petitioner
Carmen Dayrit Koh and her co-petitioners in G.R. No. 68103, who are the wife and children,
respectively, of the late Jose Koh, were the plaintiffs in Civil Case No. 4477. Upon the other hand,
private respondents are the owners of the cargo truck which figured in the mishap; a certain Ruben
Galang was the driver of the truck at the time of the accident.
The antecedent facts are not disputed.
Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge along
MacArthur Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision took
place between an International cargo truck, Loadstar, with Plate No. RF912-T Philippines '76
owned by private respondents, and driven by Ruben Galang, and a Ford Escort car bearing Plate
No. S2-850 Pampanga '76 driven by Jose Koh. The collision resulted in the deaths of Jose Koh,
Kim Koh McKee and Loida Bondoc, and physical injuries to George Koh McKee, Christopher Koh
McKee and Araceli Koh McKee, all passengers of the Ford Escort.
10

Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George,
Christopher and Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one and
a half year old Kim. At the time of the collision, Kim was seated on the lap of Loida Bondoc who
was at the front passenger's seat of the car while Araceli and her two (2) sons were seated at the
car's back seat.
Immediately before the collision, the cargo truck, which was loaded with two hundred (200) cavans
of rice weighing about 10,000 kilos, was traveling southward from Angeles City to San Fernando
Pampanga, and was bound for Manila. The Ford Escort, on the other hand, was on its way to
Angeles City from San Fernando. When the northbound car was about (10) meters away from the
southern approach of the bridge, two (2) boys suddenly darted from the right side of the road and
into the lane of the car. The boys were moving back and forth, unsure of whether to cross all the
way to the other side or turn back. Jose Koh blew the horn of the car, swerved to the left and
entered the lane of the truck; he then switched on the headlights of the car, applied the brakes and
thereafter attempted to return to his lane. Before he could do so, his car collided with the truck. The
collision occurred in the lane of the truck, which was the opposite lane, on the said bridge.
The incident was immediately reported to the police station in Angeles City; consequently, a team
of police officers was forthwith dispatched to conduct an on the spot investigation. In the sketch 1
prepared by the investigating officers, the bridge is described to be sixty (60) "footsteps" long and
fourteen (14) "footsteps" wide — seven (7) "footsteps" from the center line to the inner edge of the
side walk on both sides. 2 Pulong Pulo Bridge, which spans a dry brook, is made of concrete with
soft shoulders and concrete railings on both sides about three (3) feet high.
The sketch of the investigating officer discloses that the right rear portion of the cargo truck was
two (2) "footsteps" from the edge of the right sidewalk, while its left front portion was touching the
center line of the bridge, with the smashed front side of the car resting on its front bumper. The
truck was about sixteen (16) "footsteps" away from the northern end of the bridge while the car was
about thirty-six (36) "footsteps" from the opposite end. Skid marks produced by the right front tire
of the truck measured nine (9) "footsteps", while skid marks produced by the left front tire
measured five (5) "footsteps." The two (2) rear tires of the truck, however, produced no skid marks.
In his statement to the investigating police officers immediately after the accident, Galang admitted
that he was traveling at thirty (30) miles (48 kilometers) per hour.
As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478, were filed on
31 January 1977 before the then Court of First Instance of Pampanga and were raffled to Branch III
and Branch V of the said court, respectively. In the first, herein petitioners in G.R. No. 68103
prayed for the award of P12,000.00 as indemnity for the death of Jose Koh, P150,000.00 as moral
damages, P60,000.00 as exemplary damages, P10,000.00 for litigation expenses, P6,000.00 for
burial expenses, P3,650.00 for the burial lot and P9,500.00 for the tomb, plus attorney's fees. 3 In
the second case, petitioners in G.R. No. 68102 prayed for the following: (a) in connection with the
death of Kim McKee, the sum of P12,000.00 as death benefit, P3,150.00 for funeral services,
P3,650.00 for the cemetery lot, P3,000.00 for the tomb, P50,000.00 as moral damages, P10,000.00
as exemplary damages and P2,000.00 as miscellaneous damages; (b) in the case of Araceli Koh
McKee, in connection with the serious physical injuries suffered, the sum of P100,000.00 as moral
damages, P20,000.00 as exemplary damages, P12,000.00 for loss of earnings, P5,000.00 for the
hospitalization expenses up to the date of the filing of the complaint; and (c) with respect to George
McKee, Jr., in connection with the serious physical injuries suffered, the sum of P50,000.00 as
moral damages, P20,000.00 as exemplary damages and the following medical expenses: P3,400
payable to the Medical Center, P3,500.00 payable to the St. Francis Medical Center, P5,175.00
payable to the Clark Air Base Hospital, and miscellaneous expenses amounting to P5,000.00. They
also sought an award of attorney's fees amounting to 25% of the total award plus traveling and hotel
expenses, with costs. 4
On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless Imprudence
Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to Property" was filed with
the trial court. It was docketed as Criminal Case No. 3751 and was raffled to Branch V of the court,
the same Branch where Civil Case No. 4478 was assigned. 5
In their Answer with Counterclaim in Civil Case No. 4477, private respondents asserted that it was
the Ford Escort car which "invaded and bumped (sic) the lane of the truck driven by Ruben Galang
and, as counterclaim, prayed for the award of P15,000.00 as attorney's fees, P20,000.00 as actual
and liquidated damages, P100,000.00 as moral damages and P30,000.00 as business losses. 6 In
Civil Case No. 4478, private respondents first filed a motion to dismiss on grounds of pendency of
another action (Civil Case No. 4477) and failure to implead an indispensable party, Ruben Galang,
the truck driver; they also filed a motion to consolidate the case with Civil Case No. 4477 pending
before Branch III of the same court, which was opposed by the plaintiffs. 7 Both motions were
denied by Branch V, then presided over by Judge Ignacio Capulong. Thereupon, private
respondents filed their Answer with Counter-claim 8 wherein they alleged that Jose Koh was the
person "at fault having approached the lane of the truck driven by Ruben Galang, . . . which was on
the right lane going towards Manila and at a moderate speed observing all traffic rules and
regulations applicable under the circumstances then prevailing;" in their counterclaim, they prayed
for an award of damages as may be determined by the court after due hearing, and the sums of
P10,000.00 as attorney's fees and P5,000.00 as expenses of litigation.
Petitioners filed their Answers to the Counterclaims in both cases.
To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a motion
to adopt the testimonies of witnesses taken during the hearing of Criminal Case No. 3751, which
private respondents opposed and which the court denied. 9 Petitioners subsequently moved to
reconsider the order denying the motion for consolidation, 10 which Judge Capulong granted in the
Order of 5 September 1978; he then directed that Civil Case No. 4478 be consolidated with Civil
Case No. 4477 in Branch III of the court then presided over by Judge Mario Castañeda, Jr.
Left then with Branch V of the trial court was Criminal Case No. 3751.
In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuñag, Col.
Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, 11 and
offered several documentary exhibits. Upon the other hand, private respondents presented as
witnesses Ruben Galang, Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12
In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia, Pfc.
Fernando Nuñag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector,
Ulanday, Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan and
11
Eugenio Tanhueco, and offered several documentary exhibits. 13 Upon the other hand, the defense
presented the accused Ruben Galang, Luciano Punzalan, Zenaida Soliman and Roman Dayrit, and
offered documentary exhibits. 14
On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang in the
aforesaid criminal case. The dispositive portion of the decision reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the accused Ruben
Galang guilty beyond reasonable doubt of the crime charged in the information and after applying
the provisions of Article 365 of the Revised Penal Code and indeterminate sentence law, this Court,
imposes upon said accused Ruben Galang the penalty of six (6) months of arresto mayor as
minimum to two (2) years, four (4) months and one (1) day of prision correccional as maximum;
the accused is further sentenced to pay and indemnify the heirs of Loida Bondoc the amount of
P12,000.00 as indemnity for her death; to reimburse the heirs of Loida Bondoc the amount of
P2,000.00 representing the funeral expenses; to pay the heirs of Loida Bondoc the amount of
P20,000.00 representing her loss of income; to indemnify and pay the heirs of the deceased Jose
Koh the value of the car in the amount of P53,910.95, and to pay the costs. 15
The aforecited decision was promulgated only on 17 November 1980; on the same day, counsel for
petitioners filed with Branch III of the court — where the two (2) civil cases were pending — a
manifestation to that effect and attached thereto a copy of the decision. 16
Upon the other hand, Judge Mario Castañeda, Jr. dismissed the two (2) civil cases on 12 November
1980 and awarded the private respondents moral damages, exemplary damages and attorney's fees.
17 The dispositive portion of the said decision reads as follows:
WHEREFORE, finding the preponderance of evidence to be in favor of the defendants and against
the plaintiffs, these cases are hereby ordered DISMISSED with costs against the plaintiffs. The
defendants had proven their counter-claim, thru evidences (sic) presented and unrebutted. Hence,
they are hereby awarded moral and exemplary damages in the amount of P100,000.00 plus
attorney's fee of P15,000.00 and litigation expenses for (sic) P2,000.00. The actual damages
claimed for (sic) by the defendants is (sic) hereby dismissing for lack of proof to that effect (sic). 18
A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and was
received on 2 December 1980. 19
Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The appeal
was docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third Division.
Plaintiffs in Civil Cases Nos. 4477 and 4478 likewise separately appealed the 12 November 1980
decision to the appellate court. The appeals were docketed as C.A.-G.R. No. 69041-R and C.A.-
G.R. No. 69040-R, respectively, and were assigned to the Fourth Civil Cases Division.
On 4 October 1982, the respondent Court promulgated its decision 20 in C.A.-G.R. Blg. 24764-CR
affirming the conviction of Galang. 21 The dispositive portion of the decision reads:
DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay sa kanyang
kabuuan. Ang naghahabol pa rin ang pinagbabayad ng gugol ng paghahabol.
A motion for reconsideration of the decision was denied by the respondent Court in its Kapasiyahan
promulgated on 25 November 1982. 22 A petition for its review 23 was filed with this Court; said
petition was subsequently denied. A motion for its reconsideration was denied with finality in the
Resolution of 20 April 1983. 24
On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court,
promulgated its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the dispositive
portion of which reads:
WHEREFORE, the decision appealed from it hereby reversed and set aside and another one is
rendered, ordering defendants-appellees to pay plaintiffs-appellants as follows:
For the death of Jose Koh:
P 50,000.00 as moral damages
P 12,000.00 as death indemnity
P 16,000.00 for the lot and tomb (Exhs. U and U-1)
P 4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979)
P 950.00 for the casket (Exh. M)
P 375.00 for the vault services (Exhs. V and V-1)
For the death of Kim Koh McKee:
P 50,000.00 as moral damages
P 12,000.00 as death indemnity
P 1,000.00 for the purchase of the burial lot (Exh. M)
P 950.00 for funeral services (Exh. M-1)
P 375.00 for vault services (Exhs. V and V-1)
For the physical injuries suffered by George Koh McKee:
P 25,000.00 as moral damages
P 672.00 for Clark Field Hospital (Exh. E)
P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 and
D-2)
P 1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1)
For the physical injuries suffered by Araceli Koh McKee:
P 25,000.00 as moral damages
P 1,055.00 paid to St. Francis Medical Center (Exhs. G and
G-1)
P 75.00 paid to St. Francis Medical Center (Exhs. G-2 and G-3)
P 428.00 to Carmelite General Hospital (Exh. F)
P 114.20 to Muñoz Clinic (Exh. MM)
For the physical injuries suffered by Christopher Koh McKee:
12
P 10,000.00 as moral damages
P 1,231.10 to St. Francis Medical Center (Exhs. L and L-1)
P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)
In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477 and another
P10,000.00; as counsel (sic) fees in Civil Case No. 4478.
No pronouncement as to costs.
SO ORDERED. 26
The decision is anchored principally on the respondent Court's findings that it was Ruben Galang's
inattentiveness or reckless imprudence which caused the accident. The appellate court further said
that the law presumes negligence on the part of the defendants (private respondents), as employers
of Galang, in the selection and supervision of the latter; it was further asserted that these defendants
did not allege in their Answers the defense of having exercised the diligence of a good father of a
family in selecting and supervising the said employee.27 This conclusion of reckless imprudence is
based on the following findings of fact:
In the face of these diametrically opposed judicial positions, the determinative issue in this appeal is
posited in the fourth assigned error as follows:
IV
THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE TRUCK STOPPED
HIS TRUCK BLEW HIS HORN SWITCHED ON HIS HEADLIGHTS AND COULD NOT
SWERVE TO THE RIGHT.
Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus:
Q What happened after that, as you approached the bridge?
A When we were approaching the bridge, two (2) boys tried to cross the right lane on the
right side of the highway going to San Fernando. My father, who is (sic) the driver of the car tried
to avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to avoid
hitting the two (2) boys. We noticed the truck, he switched on the headlights to warn the truck
driver, to slow down to give us the right of way to come back to our right lane.
Q Did the truck slow down?
A No, sir, it did not, just (sic) continued on its way.
Q What happened after that?
A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is
(sic) coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic),
sir. (tsn, pp. 5-6, July 22, 1977); or (Exhibit "O" in these Civil Cases).
xxx xxx xxx
Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did
not reduce its speed before the actual impact of collision (sic) as you narrated in this Exhibit "1,"
how did you know (sic)?
A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to
our right lane on side (sic) of the highway, sir. (tsn. pp. 33-34 July 22, 1977) or (Exhibit "O" in
these Civil Cases) (pp. 30-31, Appellants' Brief).
Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and
circumstances:
1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the truck
stopped only when it had already collided with the car:
xxx xxx xxx
Tanhueco repeated the same testimony during the hearing in the criminal case:
xxx xxx xxx
Tanhueco could (sic) not be tagged as an accommodation witness because he was one of the first to
arrive at the scene of the accident. As a matter of fact, he brought one of the injured passengers to
the hospital.
We are not prepared to accord faith and credit to defendants' witnesses, Zenaida Soliman, a
passenger of the truck, and Roman Dayrit, who supposedly lived across the street.
Regarding Soliman, experience has shown that in the ordinary course of events people usually take
the side of the person with whom they are associated at the time of the accident, because, as a
general rule, they do not wish to be identified with the person who was at fault. Thus an imaginary
bond is unconsciously created among the several persons within the same group (People vs.
Vivencio, CA-G.R. No. 00310-CR, Jan. 31, 1962).
With respect to Dayrit, We can not help suspecting (sic) that he is an accommodation witness. He
did not go to the succor of the injured persons. He said he wanted to call the police authorities about
the mishap, but his phone had no dial tone. Be this (sic) as it may, the trial court in the criminal case
acted correctly in refusing to believe Dayrit.
2. Exhibit 2, the statement of Galang, does not include the claim that Galang stopped his
truck at a safe distance from the car, according to plaintiffs (p. 25, Appellants' Brief). This
contention of appellants was completely passed sub-silencio or was not refuted by appellees in their
brief. Exhibit 2 is one of the exhibits not included in the record. According to the Table of Contents
submitted by the court below, said Exhibit 2 was not submitted by defendants-appellees. In this
light, it is not far-fetched to surmise that Galang's claim that he stopped was an eleventh-hour
desperate attempt to exculpate himself from imprisonment and damages.
13
3. Galang divulged that he stopped after seeing the car about 10 meters away:
ATTY. SOTTO:
Q Do I understand from your testimony that inspite of the fact that you admitted that the
road is straight and you may be able to (sic) see 500-1000 meters away from you any vehicle, you
first saw that car only about ten (10) meters away from you for the first time?
xxx xxx xxx
A I noticed it, sir, that it was about ten (10) meters away.
ATTY. SOTTO:
Q So, for clarification, you clarify and state under your oath that you have (sic) not noticed
it before that ten (10) meters? (Tsn. 3 to 5, Sept. 18, 1979). (p. 16, Appellants' Brief)
Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped only because of the
impact. At ten (10) meters away, with the truck running at 30 miles per hour, as revealed in
Galang's affidavit (Exh. 2; p. 25, Appellants' brief), it is well-nigh impossible to avoid a collision on
a bridge.
5. Galang's truck stopped because of the collision, and not because he waited for Jose Koh
to return to his proper lane. The police investigator, Pfc. Fernando L. Nuñag, stated that he found
skid marks under the truck but there were not (sic) skid marks behind the truck (pp. 19-20, t.s.n.,
Nov. 3, 1978). The presence of skid marks show (sic) that the truck was speeding. Since the skid
marks were found under the truck and none were found at the rear of the truck, the reasonable
conclusion is that the skid marks under the truck were caused by the truck's front wheels when the
trucks (sic) suddenly stopped seconds before the mishap in an endeavor to avoid the same. But, as
aforesaid, Galang saw the car at barely 10 meters away, a very short distance to avoid a collision,
and in his futile endeavor to avoid the collision he abruptly stepped on his brakes but the smashup
happened just the same.
For the inattentiveness or reckless imprudence of Galang, the law presumes negligence on the part
of the defendants in the selection of their driver or in the supervision over him. Appellees did not
allege such defense of having exercised the duties of a good father of a family in the selection and
supervision of their employees in their answers. They did not even adduce evidence that they did in
fact have methods of selection and programs of supervision. The inattentiveness or negligence of
Galang was the proximate cause of the mishap. If Galang's attention was on the highway, he would
have sighted the car earlier or at a very safe distance than (sic) 10 meters. He proceeded to cross the
bridge, and tried to stop when a collision was already inevitable, because at the time that he entered
the bridge his attention was not riveted to the road in front of him.
On the question of damages, the claims of appellants were amply proven, but the items must be
reduced. 28
A motion for reconsideration alleging improper appreciation of the facts was subsequently filed by
private respondents on the basis of which the respondent Court, in its Resolution of 3 April 1984,
29 reconsidered and set aside its 29 November 1983 decision and affirmed in toto the trial court's
judgment of 12 November 1980. A motion to reconsider this Resolution was denied by the
respondent Court on 4 July 1984.30
Hence, this petition.
Petitioners allege that respondent Court:
I
. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT TOTALLY
REVERSED ITS DECISION BY MERELY BASING IT FROM (sic) A MERE
"PRESUMPTION," TOTALLY DISREGARDING THE PRIVATE RESPONDENTS' DRIVER'S
ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY COMMITTED THE
PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER, IT ALSO DISREGARDED THE
EVIDENCE ADDUCED AND FOUND IN THE RECORDS; THEREFORE, RESPONDENT
COURT'S RESOLUTIONS (ANNEXES A and B, PETITION) ARE CLEARLY ERRONEOUS,
PURELY BASED ON SPECULATIONS, CONJECTURES AND WITHOUT SURE
FOUNDATION IN THE EVIDENCE.
II
. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT
DISREGARDED A DOCTRINE LAID DOWN BY THIS HONORABLE COURT BY STATING
AMONG OTHERS, "IT CANNOT CATEGORICALLY ADOPT THE FINDINGS OF GUILT IN
THE CRIMINAL CASE WHERE THE DRIVER OF THE TRUCK INVOLVED IN THE
ACCIDENT WAS INDICTED.
III
. . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND MADE A
MISLEADING PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS INCUMBENT UPON
THE PLAINTIFFS-APPELLANTS (APPELLEES WRONGLY MENTIONED IN THE
RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT THE PROXIMATE CAUSE OF
THE ACCIDENT WAS THE NEGLIGENCE OF PRIVATE RESPONDENTS' DRIVER.
IV
. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR; COMMITTED GRAVE ABUSE OF
DISCRETION AND CITED ANOTHER CASE WHICH IS CLEARLY INAPPLICABLE TO
THESE CASES.
V
. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS DISCRETION IN
ADOPTING THE FINDINGS OF THE TRIAL COURT WHICH ARE CLEARLY ERRONEOUS
AND CONTRARY TO THE EVIDENCE FOUND IN THE RECORDS, SPECIALLY THEY (sic)
14
ARE CONTRARY TO THE ADMITTED FACTS AND JUDICIAL ADMISSIONS MADE BY
THE PRIVATE RESPONDENTS' DRIVER.
VI
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND
GRAVELY ERRED WHEN IT AWARDED DAMAGES TO THE PRIVATE RESPONDENTS
WHEN SAID AWARD IS NOT SUPPORTED BY EVIDENCE, IN THE RECORDS, AND SAID
AWARD IS NOT ALLOWED BY LAW AND THE CONSISTENT DECISIONS OF THIS
HONORABLE COURT.
VII
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND
GRAVELY ERRED WHEN IT ERRONEOUSLY SET ASIDE ITS DECISION AWARDING
DAMAGES TO PETITIONERS WHICH IS CLEARLY IN ACCORDANCE WITH THE
EVIDENCE, THE LAW AND JURISPRUDENCE RELATIVE TO THE AWARD OF
DAMAGES. 31
In the Resolution of 12 September 1984, We required private respondents to Comment on the
petition. 32 After the said Comment 33 was filed, petitioners submitted a Reply 34 thereto; this
Court then gave due course to the instant petitions and required petitioners to file their Brief, 35
which they accordingly complied with.
There is merit in the petition. Before We take on the main task of dissecting the arguments and
counter-arguments, some observations on the procedural vicissitudes of these cases are in order.
Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from a quasi-
delict under Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead of Criminal
Case No. 3751. Civil Case No. 4478 was eventually consolidated with Civil Case No. 4477 for joint
trial in Branch III of the trial court. The records do not indicate any attempt on the part of the
parties, and it may therefore be reasonably concluded that none was made, to consolidate Criminal
Case No. 3751 with the civil cases, or vice-versa. The parties may have then believed, and
understandably so, since by then no specific provision of law or ruling of this Court expressly
allowed such a consolidation, that an independent civil action, authorized under Article 33 in
relation to Article 2177 of the Civil Code, such as the civil cases in this case, cannot be
consolidated with the criminal case. Indeed, such consolidation could have been farthest from their
minds as Article 33 itself expressly provides that the "civil action shall proceed independently of
the criminal prosecution, and shall require only a preponderance of evidence." Be that as it may,
there was then no legal impediment against such consolidation. Section 1, Rule 31 of the Rules of
Court, which seeks to avoid a multiplicity of suits, guard against oppression and abuse, prevent
delays, clear congested dockets to simplify the work of the trial court, or in short, attain justice with
the least expense to the parties litigants, 36 would have easily sustained a consolidation, thereby
preventing the unseeming, if no ludicrous, spectacle of two (2) judges appreciating, according to
their respective orientation, perception and perhaps even prejudice, the same facts differently, and
thereafter rendering conflicting decisions. Such was what happened in this case. It should not,
hopefully, happen anymore. In the recent case of Cojuangco vs. Court or Appeals, 37 this Court
held that the present provisions of Rule 111 of the Revised Rules of Court allow a consolidation of
an independent civil action for the recovery of civil liability authorized under Articles 32, 33, 34 or
2176 of the Civil Code with the criminal action subject, however, to the condition that no final
judgment has been rendered in that criminal case.
Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty of
reckless imprudence, although already final by virtue of the denial by no less than this Court of his
last attempt to set aside the respondent Court's affirmance of the verdict of conviction, has no
relevance or importance to this case.
As We held in Dionisio vs. Alvendia, 38 the responsibility arising from fault or negligence in a
quasi-delict is entirely separate and distinct from the civil liability arising from negligence under
the Penal Code. And, as more concretely stated in the concurring opinion of Justice J.B.L. Reyes,
"in the case of independent civil actions under the new Civil Code, the result of the criminal case,
whether acquittal or conviction, would be entirely irrelevant to the civil action." 39 In Salta vs. De
Veyra and PNB vs. Purisima, 40 this Court stated:
. . . It seems perfectly reasonable to conclude that the civil actions mentioned in Article 33,
permitted in the same manner to be filed separately from the criminal case, may proceed similarly
regardless of the result of the criminal case.
Indeed, when the law has allowed a civil case related to a criminal case, to be filed separately and to
proceed independently even during the pendency of the latter case, the intention is patent to make
the court's disposition of the criminal case of no effect whatsoever on the separate civil case. This
must be so because the offenses specified in Article 33 are of such a nature, unlike other offenses
not mentioned, that they may be made the subject of a separate civil action because of the distinct
separability of their respective juridical cause or basis of action . . . .
What remains to be the most important consideration as to why the decision in the criminal case
should not be considered in this appeal is the fact that private respondents were not parties therein.
It would have been entirely different if the petitioners' cause of action was for damages arising from
a delict, in which case private respondents' liability could only be subsidiary pursuant to Article 103
of the Revised Penal Code. In the absence of any collusion, the judgment of conviction in the
criminal case against Galang would have been conclusive in the civil cases for the subsidiary
liability of the private respondents. 41
And now to the merits of the petition.
It is readily apparent from the pleadings that the principal issue raised in this petition is whether or
not respondent Court's findings in its challenged resolution are supported by evidence or are based
on mere speculations, conjectures and presumptions.
The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal by
certiorari under Rule 45 of the Revised Rules of Court, only questions of law may be raised. The
resolution of factual issues is the function of the lower courts whose findings on these matters are
received with respect and are, as a rule, binding on this Court. 42
The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and the
Court of Appeals may be set aside when such findings are not supported by the evidence or when
15
the trial court failed to consider the material facts which would have led to a conclusion different
from what was stated in its judgment. 43 The same is true where the appellate court's conclusions
are grounded entirely on conjectures, speculations and surmises 44 or where the conclusions of the
lower courts are based on a misapprehension of facts. 45
It is at once obvious to this Court that the instant case qualifies as one of the aforementioned
exceptions as the findings and conclusions of the trial court and the respondent Court in its
challenged resolution are not supported by the evidence, are based on an misapprehension of facts
and the inferences made therefrom are manifestly mistaken. The respondent Court's decision of 29
November 1983 makes the correct findings of fact.
In the assailed resolution, the respondent Court held that the fact that the car improperly invaded the
lane of the truck and that the collision occurred in said lane gave rise to the presumption that the
driver of the car, Jose Koh, was negligent. On the basis of this presumed negligence, the appellate
court immediately concluded that it was Jose Koh's negligence that was the immediate and
proximate cause of the collision. This is an unwarranted deduction as the evidence for the
petitioners convincingly shows that the car swerved into the truck's lane because as it approached
the southern end of the bridge, two (2) boys darted across the road from the right sidewalk into the
lane of the car. As testified to by petitioner Araceli Koh McKee:
Q What happened after that, as you approached the bridge?
A When we were approaching the bridge, two (2) boys tried to cross the right lane on the
right side of the highway going to San Fernando. My father, who is (sic) the driver of the car tried
to avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to avoid
hitting the two (2) boys. We noticed the truck, he switched on the headlights to warn the truck
driver, to slow down to give us the right of way to come back to our right lane.
Q Did the truck slow down?
A No sir, it did not, just (sic) continued on its way.
Q What happened after that?
A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is
(sic) coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic),
sir. 46
Her credibility and testimony remained intact even during cross examination. Jose Koh's entry into
the lane of the truck was necessary in order to avoid what was, in his mind at that time, a greater
peril — death or injury to the two (2) boys. Such act can hardly be classified as negligent.
Negligence was defined and described by this Court in Layugan vs. Intermediate Appellate Court,
47 thus:
. . . Negligence is the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do (Black's Law Dictionary, Fifth
Edition, 930), or as Judge Cooley defines it, "(T)he failure to observe for the protection of the
interests of another person, that degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury." (Cooley on Torts, Fourth Edition, vol. 3,
265)
In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago but still a sound rule,
(W)e held:
The test by which to determine the existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use that (reasonable care and caution
which an ordinarily prudent person would have used in the same situation?) If not, then he is guilty
of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman
law. . . .
In Corliss vs. Manila Railroad Company, 48 We held:
. . . Negligence is want of the care required by the circumstances. It is a relative or comparative, not
an absolute, term and its application depends upon the situation of the parties and the degree of care
and vigilance which the circumstances reasonably require. Where the danger is great, a high degree
of care is necessary, and the failure to observe it is a want of ordinary care under the circumstances.
(citing Ahern v. Oregon Telephone Co., 35 Pac. 549 (1894).
On the basis of the foregoing definition, the test of negligence and the facts obtaining in this case, it
is manifest that no negligence could be imputed to Jose Koh. Any reasonable and ordinary prudent
man would have tried to avoid running over the two boys by swerving the car away from where
they were even if this would mean entering the opposite lane. Avoiding such immediate peril would
be the natural course to take particularly where the vehicle in the opposite lane would be several
meters away and could very well slow down, move to the side of the road and give way to the
oncoming car. Moreover, under what is known as the emergency rule, "one who suddenly finds
himself in a place of danger, and is required to act without time to consider the best means that may
be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what
subsequently and upon reflection may appear to have been a better method, unless the emergency in
which he finds himself is brought about by his own negligence." 49
Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose Koh
adopted the best means possible in the given situation to avoid hitting them. Applying the above
test, therefore, it is clear that he was not guilty of negligence.
In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his negligence
was the proximate cause of the collision. Proximate cause has been defined as:
. . . that cause, which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not have occurred. And more
comprehensively, the proximate legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and continuous chain of
events, each having a close causal connection with its immediate predecessor, the final event in the
chain immediately effecting the injury as a natural and probable result of the cause which first
16
acted, under such circumstances that the person responsible for the first event should, as an ordinary
prudent and intelligent person, have reasonable ground to expect at the moment of his act or default
that an injury to some person might probably result therefrom. 50
Applying the above definition, although it may be said that the act of Jose Koh, if at all negligent,
was the initial act in the chain of events, it cannot be said that the same caused the eventual injuries
and deaths because of the occurrence of a sufficient intervening event, the negligent act of the truck
driver, which was the actual cause of the tragedy. The entry of the car into the lane of the truck
would not have resulted in the collision had the latter heeded the emergency signals given by the
former to slow down and give the car an opportunity to go back into its proper lane. Instead of
slowing down and swerving to the far right of the road, which was the proper precautionary
measure under the given circumstances, the truck driver continued at full speed towards the car.
The truck driver's negligence becomes more apparent in view of the fact that the road is 7.50 meters
wide while the car measures 1.598 meters and the truck, 2.286 meters, in width. This would mean
that both car and truck could pass side by side with a clearance of 3.661 meters to spare. 51
Furthermore, the bridge has a level sidewalk which could have partially accommodated the truck.
Any reasonable man finding himself in the given situation would have tried to avoid the car instead
of meeting it head-on.
The truck driver's negligence is apparent in the records. He himself said that his truck was running
at 30 miles (48 kilometers) per hour along the bridge while the maximum speed allowed by law on
a bridge 52 is only 30 kilometers per hour. Under Article 2185 of the Civil Code, a person driving a
vehicle is presumed negligent if at the time of the mishap, he was violating any traffic regulation.
We cannot give credence to private respondents' claim that there was an error in the translation by
the investigating officer of the truck driver's response in Pampango as to whether the speed cited
was in kilometers per hour or miles per hour. The law presumes that official duty has been regularly
performed; 53 unless there is proof to the contrary, this presumption holds. In the instant case,
private respondents' claim is based on mere conjecture.
The truck driver's negligence was likewise duly established through the earlier quoted testimony of
petitioner Araceli Koh McKee which was duly corroborated by the testimony of Eugenio
Tanhueco, an impartial eyewitness to the mishap.
Araceli Koh McKee testified further, thus:
xxx xxx xxx
Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did
not reduce its speed before the actual impact of collision as you narrated in this Exhibit "1," how
did you know?
A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to
our right lane on side (sic) of the highway, sir. (tsn, pp. 33-34, July 22, 1977) or (Exhibit; "O" in
these Civil Cases) (pp. 30-31, Appellants' Brief)54
while Eugenio Tanhueco testified thus:
Q When you saw the truck, how was it moving?
A It was moving 50 to 60 kilometers per hour, sir.
Q Immediately after you saw this truck, do you know what happened?
A I saw the truck and a car collided (sic), sir, and I went to the place to help the victims.
(tsn. 28, April 19, 1979)
xxx xxx xxx
Q From the time you saw the truck to the time of the impact, will you tell us if the said truck
ever stopped?
A I saw it stopped (sic) when it has (sic) already collided with the car and it was already
motionless. (tsn. 31, April 19, 1979; Emphasis Supplied). (p. 27, Appellants' Brief). 55
Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the proper
measures and degree of care necessary to avoid the collision which was the proximate cause of the
resulting accident.
Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here. Last
clear chance is a doctrine in the law of torts which states that the contributory negligence of the
party injured will not defeat the claim for damages if it is shown that the defendant might, by the
exercise of reasonable care and prudence, have avoided the consequences of the negligence of the
injured party. In such cases, the person who had the last clear chance to avoid the mishap is
considered in law solely responsible for the consequences thereof.56
In Bustamante vs. Court of Appeals, 57 We held:
The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly, is
that the negligence of the plaintiff does not preclude a recovery for the negligence of the defendant
where it appears that the defendant, by exercising reasonable care and prudence, might have
avoided injurious consequences to the plaintiff notwithstanding the plaintiff's negligence. In other
words, the doctrine of last clear chance means that even though a person's own acts may have
placed him in a position of peril, and an injury results, the injured person is entitled to recovery
(sic). As the doctrine is usually stated, a person who has the last clear chance or opportunity of
avoiding an accident, notwithstanding the negligent acts of his opponent or that of a third person
imputed to the opponent is considered in law solely responsible for the consequences of the
accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165).
The practical import of the doctrine is that a negligent defendant is held liable to a negligent
plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in peril, if he,
aware of the plaintiff's peril, or according to some authorities, should have been aware of it in the
reasonable exercise of due care, had in fact an opportunity later than that of the plaintiff to avoid an
accident (57 Am. Jur., 2d, pp. 798-799).
In Pantranco North Express, Inc., vs. Baesa, 58 We ruled:
17
The doctrine of last clear chance was defined by this Court in the case of Ong v. Metropolitan
Water District, 104 Phil. 397 (1958), in this wise:
The doctrine of the last clear chance simply, means that the negligence of a claimant does not
preclude a recovery for the negligence of defendant where it appears that the latter, by exercising
reasonable care and prudence, might have avoided injurious consequences to claimant
notwithstanding his negligence.
The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent
negligence but the defendant, who had the last fair chance to avoid the impending harm and failed
to do so, is made liable for all the consequences of the accident notwithstanding the prior
negligence of the plaintiff [Picart v. Smith, 37 Phil. 809 (1918); Glan People's Lumber and
Hardware, et al. vs. Intermediate Appellate Court, Cecilia Alferez Vda. de Calibo, et al., G.R. No.
70493, May, 18, 1989]. The subsequent negligence of the defendant in failing to exercise ordinary
care to avoid injury to plaintiff becomes the immediate or proximate cause of the accident which
intervenes between the accident and the more remote negligence of the plaintiff, thus making the
defendant liable to the plaintiff [Picart v. Smith, supra].
Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable to
a plaintiff who was guilty of prior or antecedent negligence, although it may also be raised as a
defense to defeat claim (sic) for damages.
Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck
driver's negligence in failing to exert ordinary care to avoid the collision which was, in law, the
proximate cause of the collision. As employers of the truck driver, the private respondents are,
under Article 2180 of the Civil Code, directly and primarily liable for the resulting damages. The
presumption that they are negligent flows from the negligence of their employee. That presumption,
however, is only juris tantum, not juris et de jure. 59 Their only possible defense is that they
exercised all the diligence of a good father of a family to prevent the damage. Article 2180 reads as
follows:
The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions,
but also for those of persons for whom one is responsible.
xxx xxx xxx
Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry.
xxx xxx xxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove that
they observed all the diligence of a good father of a family to prevent damage.
The diligence of a good father referred to means the diligence in the selection and supervision of
employees. 60 The answers of the private respondents in Civil Cases Nos. 4477 and 4478 did not
interpose this defense. Neither did they attempt to prove it.
The respondent Court was then correct in its Decision of 29 November 1983 in reversing the
decision of the trial court which dismissed Civil Cases Nos. 4477 and 4478. Its assailed Resolution
of 3 April 1984 finds no sufficient legal and factual moorings.
In the light of recent decisions of this Court, 61 the indemnity for death must, however, be
increased from P12,000.00 to P50,000.00.
WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the respondent Court
of 3 April 1984 is SET ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV Nos.
69040-41 is REINSTATED, subject to the modification that the indemnity for death is increased
from P12,000.00 to P50,000.00 each for the death of Jose Koh and Kim Koh McKee.
Costs against private respondents.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21512 August 31, 1966
PROSPERO SABIDO and ASER LAGUNDA, petitioners,
vs.
CARLOS CUSTODIO, BELEN MAKABUHAY CUSTODIO and THE HONORABLE
COURT OF APPEALS, respondents.
Sabido, Sabido and Associates for petitioners.
Ernesto S. Tengco for respondents.
CONCEPCION, C.J.:
Prospero Sabido and Aser Lagunda seek the review by certiorari of a decision of the Court of
Appeals, affirming that of the Court of First Instance of Laguna, sentencing the Laguna-Tayabas
Bus Co., Nicasio Mudales, and herein petitioners. Prospero Sabido and Aser Lagunda, to jointly
and severally indemnify Belen Makabuhay Custodio and her son, Agripino Custodio Jr., in the sum
of P6,000 and to pay the costs of the suit.
The facts are set forth in the decision of the Court of Appeals from which we quote:
Upon a careful study and judicious examining of the evidence on record, we are inclined to concur
in the findings made by the trial court. Here is how the Court a quo analyzed the facts of this case:
"In Barrio Halang, Municipality of Lumban, Province of Laguna, two trucks, one driven by Nicasio
Mudales and belonging to Laguna-Tayabas Bus Company, and the other driven by Aser Lagunda
18
and owned by Prospero Sabido, going in opposite directions met each other in a road curve.
Agripino Custodia a passenger of LTB bus, who was hanging on the left side as truck was full of
passengers was sideswiped by the track driven by Aser Lagunda. As a result, Agripino Custodio
was injured and died (Exhibit A).
"It appears clear from the evidence that Agripino Custodio was hanging on the left side of the LTB
bus. Otherwise, were he sitting inside the truck, he could not have been struck by the six by six
truck driven by Aser Lagunda. This fact alone, of allowing Agripino Custodio to hang on the side
of the truck, makes the defendant Laguna Tayabas Bus Company liable for damages. For certainly
its employees, who are the driver and conductor were negligent. They should not have allowed
Agripino Custodio to ride their truck in that manner.
"To avoid any liability, Aser Lagunda and Prospero Sabido throw all the blame on Nicasio
Mudales. From the testimony, however, of Belen Makabuhay, Agripino Custodio's widow, we can
deduce that Aser Lagunda was equally negligent as Nicasio Mudales. Belen testified that the 6 x 6
truck was running fast when it met the LTB Bus. And Aser Lagunda had time and opportunity to
avoid the mishap if he had been sufficiently careful and cautious because the two trucks never
collided with each other. By simply swerving to the right side of the road, the 6 x 6 truck could
have avoided hitting Agripino Custodio. It is incredible that the LTB was running on the middle of
the road when passing a curve. He knows it is dangerous to do so. We are rather of the belief that
both trucks did not keep close to the right side of the road so they sideswiped each other and thus
Agripino Custodio was injured and died. In other words, both drivers must have drive in their
trucks not in the proper lane and are, therefore, both reckless and negligent.
"We might state by way of additional observations that the sideswiping of the deceased and his two
fellow passengers took place on broad daylight at about 9:30 in the morning of June 9, 1955 when
the LTB bus with full load to passengers was negotiating a sharp curve of a bumpy and sliding
downward a slope, whereas the six by six truck was climbing up with no cargoes or passengers on
board but for three helpers, owner Sabido and driver Lagunda (tsn. 308-309, Mendoza). Under the
above-stated condition, there exists strong persuasion to accept what Belen Makabuhay and Sofia
Mesina, LTB passengers, had testified to the effect that the 6 x 6 cargo truck was running at a fast
rate of speed (tsn. 15, 74, 175 Mendoza). From the lips of no less than driver Lagunda himself
come the testimonial admission that the presence of three hanging passengers located at the left side
of the bus was noted when his vehicle was still at a distance of 5 or 7 meters from the bus, and yet
despite the existence of a shallow canal on the right side of the road which he could pass over with
ease, Lagunda did not care to exercise prudence to avert the accident simply because to use his own
language the canal "is not a passage of trucks."
Based upon these facts, the Court of First Instance of Laguna and the Court of Appeals concluded
that the Laguna-Tayabas Bus Co. — hereinafter referred to as the carrier — and its driver Nicasio
Mudales (none of whom has appealed), had violated the contract of carriage with Agripino
Custodio, whereas petitioners Sabido and Lagunda were guilty of a quasi delict, by reason of which
all of them were held solidarity liable in the manner above indicated.
Petitioners now maintain: (1) that the death of Agripino Custodio was due exclusively to the
negligence of the carrier and its driver; (2) that petitioners were not guilty of negligence in
connection with the matter under consideration; (3) that petitioners cannot be held solidarily liable
with the carrier and its driver; and (4) that the complaint against petitioners herein should be
dismissed.
With respect to the first two (2) points, which are interrelated, it is urged that the carrier and its
driver were clearly guilty of negligence for having allowed Agripino Custodio to ride on the
running board of the bus, in violation of Section 42 of Act No. 3992, and that this negligence was
the proximate cause of Agripino's death. It should be noted, however, that the lower court had,
likewise, found the petitioners guilty of contributory negligence, which was as much a proximate
cause of the accident as the carrier's negligence, for petitioners' truck was running at a considerable
speed, despite the fact that it was negotiating a sharp curve, and, instead of being close to its right
side of the road, said truck was driven on its middle portion and so near the passenger bus coming
from the opposite direction as to sideswipe a passenger riding on its running board.1äwphï1.ñët
The views of the Court of Appeals on the speed of the truck and its location at the time of the
accident are in the nature of findings of fact, which we cannot disturb in a petition for review by
certiorari, such as the one at bar. At any rate, the correctness of said findings is borne out by the
very testimony of petitioner Lagunda to the effect that he saw the passengers riding on the running
board of the bus while the same was still five (5) or seven (7) meters away from the truck driven by
him. Indeed, the distance between the two (2) vehicles was such that he could have avoided
sideswiping said passengers if his truck were not running at a great speed.
Although the negligence of the carrier and its driver is independent, in its execution, of the
negligence of the truck driver and its owner, both acts of negligence are the proximate cause of the
death of Agripino Custodio. In fact, the negligence of the first two (2) would not have produced this
result without the negligence of petitioners' herein. What is more, petitioners' negligence was the
last, in point of time, for Custodio was on the running board of the carrier's bus sometime before
petitioners' truck came from the opposite direction, so that, in this sense, petitioners' truck had the
last clear chance.
Petitioners contend that they should not be held solidarily liable with the carrier and its driver,
because the latter's liability arises from a breach of contract, whereas that of the former springs
from a quasi delict. The rule is, however, that
According to the great weight of authority, where the concurrent or successive negligent acts or
omission of two or more persons, although acting independently of each other, are, in combination,
the direct and proximate cause of a single injury to a third person, and it is impossible to determine
in what proportion each contributed to the injury, either is responsible for the whole injury, even
though his act alone might not have caused the entire injury, or the same damage might have
resulted from the acts of the other tort-feasor ... . (38 Am. Jur. 946, 947.)
Wherefore, the decision appealed from is hereby affirmed, with costs against the petitioners herein.
It is so ordered.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
19

G.R. No. 130068 October 1, 1998
FAR EASTERN SHIPPING COMPANY, petitioner,
vs.
COURT OF APPEALS and PHILIPPINE PORTS AUTHORITY, respondents.
G.R. No. 130150 October, 1998
MANILA PILOTS ASSOCIATION, petitioner,
vs.
PHILIPPINE PORTS AUTHORITY and FAR EASTERN SHIPPING COMPANY,
respondents.
REGALADO, J.:
These consolidated petitions for review on certiorari seek in unison to annul and set aside the
decision1 of respondent Court of Appeals of November 15, 1996 and its resolution 2 dated July 31,
1997 in CA-G.R. CV No. 24072, entitled "Philippine Ports Authority, Plaintiff-Appellee vs. Far
Eastern Shipping Company, Senen C. Gavino and Manila Pilots' Association, Defendants-
Appellants," which affirmed with modification the judgment of the trial court holding the
defendants-appellants therein solidarily liable for damages in favor of herein private respondent.
There is no dispute about the facts as found by the appellate court,
thus —
. . . On June 20, 1980, the M/V PAVLODAR, flying under the flagship of the USSR, owned and
operated by the Far Eastern Shipping Company (FESC for brevity's sake), arrived at the Port of
Manila from Vancouver, British Columbia at about 7:00 o'clock in the morning. The vessel was
assigned Berth 4 of the Manila International Port, as its berthing space. Captain Roberto Abellana
was tasked by the Philippine Port Authority to supervise the berthing of the vessel. Appellant Senen
Gavino was assigned by the Appellant Manila Pilots' Association (MPA for brevity's sake) to
conduct docking maneuvers for the safe berthing of the vessel to Berth No. 4.
Gavino boarded the vessel at the quarantine anchorage and stationed himself in the bridge, with the
master of the vessel, Victor Kavankov, beside him. After a briefing of Gavino by Kavankov of the
particulars of the vessel and its cargo, the vessel lifted anchor from the quarantine anchorage and
proceeded to the Manila International Port. The sea was calm and the wind was ideal for docking
maneuvers.
When the vessel reached the landmark (the big church by the Tondo North Harbor) one-half mile
from the pier, Gavino ordered the engine stopped. When the vessel was already about 2,000 feet
from the pier, Gavino ordered the anchor dropped. Kavankov relayed the orders to the crew of the
vessel on the bow. The left anchor, with two (2) shackles, were dropped. However, the anchor did
not take hold as expected. The speed of the vessel did not slacken. A commotion ensued between
the crew members. A brief conference ensued between Kavankov and the crew members. When
Gavino inquired what was all the commotion about, Kavankov assured Gavino that there was
nothing to it.
After Gavino noticed that the anchor did not take hold, he ordered the engines half-astern.
Abellana, who was then on the pier apron, noticed that the vessel was approaching the pier fast.
Kavankov likewise noticed that the anchor did not take hold. Gavino thereafter gave the "full-
astern" code. Before the right anchor and additional shackles could be dropped, the bow of the
vessel rammed into the apron of the pier causing considerable damage to the pier. The vessel
sustained damage too, (Exhibit "7-Far Eastern Shipping). Kavankov filed his sea protest (Exhibit
"1-Vessel"). Gavino submitted his report to the Chief Pilot (Exhibit "1-Pilot") who referred the
report to the Philippine Ports Authority (Exhibit 2-Pilot"). Abellana likewise submitted his report of
the incident (Exhibit "B").
Per contract and supplemental contract of the Philippine Ports Authority and the contractor for the
rehabilitation of the damaged pier, the same cost the Philippine Ports Authority the amount of
P1,126,132.25 (Exhibits "D" and "E").3
On January 10, 1983, the Philippine Ports Authority (PPA, for brevity), through the Solicitor
General, filed before the Regional Trial Court of Manila, Branch 39, a complaint for a sum of
money against Far Eastern Shipping Co., Capt. Senen C. Gavino and the Manila Pilots' Association,
docketed as Civil Case No. 83-14958,4 praying that the defendants therein be held jointly and
severally liable to pay the plaintiff actual and exemplary damages plus costs of suit. In a decision
dated August 1, 1985, the trial court ordered the defendants therein jointly and severally to pay the
PPA the amount of P1,053,300.00 representing actual damages and the costs of suit.5
The defendants appealed to the Court of Appeals and raised the following issues: (1) Is the pilot of
a commercial vessel, under compulsory pilotage, solely liable for the damage caused by the vessel
to the pier, at the port of destination, for his negligence? and (2) Would the owner of the vessel be
liable likewise if the damage is caused by the concurrent negligence of the master of the vessel and
the pilot under a compulsory pilotage?
As stated at the outset, respondent appellate court affirmed the findings of the court a quo except
that if found no employer-employee relationship existing between herein private respondents
Manila Pilots' Association (MPA, for short) and Capt. Gavino.6 This being so, it ruled instead that
the liability of MPA is anchored, not on Article 2180 of the Civil Code, but on the provisions of
Customs Administrative Order No. 15-65, 7 and accordingly modified said decision of the trial
court by holding MPA, along with its co-defendants therein, still solidarily liable to PPA but
entitled MPA to reimbursement from Capt. Gavino for such amount of the adjudged pecuniary
liability in excess of the amount equivalent to seventy-five percent (75%) of its prescribed reserve
fund. 8
Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with the decision of the
Court of Appeals and both of them elevated their respective plaints to us via separate petitions for
review on certiorari.
In G. R. No. 130068, which was assigned to the Second Division of this Court, FESC imputed that
the Court of Appeals seriously erred:
20
1. in not holding Senen C. Gavino and the Manila Pilots' Association as the parties solely
responsible for the resulting damages sustained by the pier deliberately ignoring the established
jurisprudence on the matter;
2. in holding that the master had not exercised the required diligence demanded from him by
the circumstances at the time the incident happened;
3. in affirming the amount of damages sustained by the respondent Philippine Ports
Authority despite a strong and convincing evidence that the amount is clearly exorbitant and
unreasonable;
4. in not awarding any amount of counterclaim prayed for by the petitioner in its answer;
and
5. in not granting herein petitioner's claim against pilot Senen C. Gavino and Manila Pilots'
Association in the event that it be held
liable. 9
Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage at the time of the
incident, it was the compulsory pilot, Capt. Gavino, who was in command and had complete control
in the navigation and docking of the vessel. It is the pilot who supersedes the master for the time
being in the command and navigation of a ship and his orders must be obeyed in all respects
connected with her navigation. Consequently, he was solely responsible for the damage caused
upon the pier apron, and not the owners of the vessel. It claims that the master of the boat did not
commit any act of negligence when he failed to countermand or overrule the orders of the pilot
because he did not see any justifiable reason to do so. In other words, the master cannot be faulted
for relying absolutely on the competence of the compulsory pilot. If the master does not observe
that a compulsory pilot is incompetent or physically incapacitated, the master is justified in relying
on the pilot. 10
Respondent PPA, in its comment, predictably in full agreement with the ruling of respondent court
on the solidary liability of FESC, MPA and Capt. Gavino, stresses the concurrent negligence of
Capt. Gavino, the harbor pilot, and Capt. Viktor Kabankov, * shipmaster of MV Pavlodar, as the
basis of their solidary liability for damages sustained by PPA. It posits that the vessel was being
piloted by Capt. Gavino with Capt. Kabankov beside him all the while on the bridge of the vessel,
as the former took over the helm of MV Pavlodar when it rammed and damaged the apron of the
pier of Berth No. 4 of the Manila International Port. Their concurrent negligence was the immediate
and proximate cause of the collision between the vessel and the pier — Capt. Gavino, for his
negligence in the conduct of docking maneuvers for the safe berthing of the vessel; and Capt.
Kabankov, for failing to countermand the orders of the harbor pilot and to take over and steer the
vessel himself in the face of imminent danger, as well as for merely relying on Capt. Gavino during
the berthing procedure. 11
On the other hand, in G.R. No. 130150, originally assigned to the Court's First Division and later
transferred to the Third Division. MPA, now as petitioner in this case, avers that respondent court's
errors consisted in disregarding and misinterpreting Customs Administrative Order No. 15-65
which limits the liability of MPA. Said pilots' association asseverates that it should not be held
solidarily liable with Capt. Gavino who, as held by respondent court is only a member, not an
employee, thereof. There being no employer-employee relationship, neither can MPA be held liable
for any vicarious liability for the respective exercise of profession by its members nor be considered
a joint tortfeasor as to be held jointly and severally liable. 12 It further argues that there was
erroneous reliance on Customs Administrative Order No. 15-65 and the constitution and by-laws of
MPA, instead of the provisions of the Civil Code on damages which, being a substantive law, is
higher in category than the aforesaid constitution and by-laws of a professional organization or an
administrative order which bears no provision classifying the nature of the liability of MPA for the
negligence its member pilots. 13
As for Capt. Gavino, counsel for MPA states that the former had retired from active pilotage
services since July 28, 1994 and has ceased to be a member of petitioner pilots' association. He is
not joined as a petitioner in this case since his whereabouts are unknown. 14
FESC's comment thereto relied on the competence of the Court of Appeals in construing provisions
of law or administrative orders as bases for ascertaining the liability of MPA, and expressed full
accord with the appellate court's holding of solidary liability among itself, MPA and Capt. Gavino.
It further avers that the disputed provisions of Customs Administrative Order No. 15-65 clearly
established MPA's solidary liability. 15
On the other hand, public respondent PPA, likewise through representations by the Solicitor
General, assumes the same supportive stance it took in G.R. No. 130068 in declaring its total
accord with the ruling of the Court of Appeals that MPA is solidarily liable with Capt. Gavino and
FESC for damages, and in its application to the fullest extent of the provisions of Customs
Administrative Order No. 15-65 in relation to MPA's constitution and by-laws which spell out the
conditions of and govern their respective liabilities. These provisions are clear and unambiguous as
regards MPA's liability without need for interpretation or construction. Although Customs
Administrative Order No. 15-65 is a mere regulation issued by an administrative agency pursuant to
delegated legislative authority to fix details to implement the law, it is legally binding and has the
same statutory force as any valid statute. 16
Upon motion 17 by FESC dated April 24, 1998 in G.R. No. 130150, said case was consolidated
with G.R. No. 130068. 18
Prefatorily, on matters of compliance with procedural requirements, it must be mentioned that the
conduct of the respective counsel for FESC and PPA leaves much to be desired, to the displeasure
and disappointment of this Court.
Sec. 2, Rule 42 of the 1997 Rules of Civil Procedure 19 incorporates the former Circular No. 28-91
which provided for what has come to be known as the certification against forum shopping as an
additional requisite for petitions filed with the Supreme Court and the Court of Appeals, aside from
the other requirements contained in pertinent provisions of the Rules of Court therefor, with the end
in view of preventing the filing of multiple complaints involving the same issues in the Supreme
Court, Court of Appeals or different divisions thereof or any other tribunal or agency.
More particularly, the second paragraph of Section 2, Rule 42 provides:
xxx xxx xxx
21
The petitioner shall also submit together with the petition a certification under oath that he has not
theretofore commenced any other action involving the same issues in the Supreme Court, the Court
of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other
action or proceeding, he must state the status of the same; and if he should thereafter learn that a
similar action or proceeding has been filed or is pending before the Supreme Court, the Court of
Appeals or different divisions thereof, or any other tribunal or agency, he undertakes to promptly
inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom.
(Emphasis ours.)
For petitions for review filed before the Supreme Court, Section 4(e), Rule 45 specifically requires
that such petition shall contain a sworn certification against forum shopping as provided in the last
paragraph of Section 2, Rule 42.
The records show that the law firm of Del Rosario and Del Rosario through its associate, Atty.
Herbert A. Tria, is the counsel of record for FESC in both G.R. No. 130068 and G.R. No. 130150.
G.R. No. 130068, which is assigned to the Court's Second Division, commenced with the filing by
FESC through counsel on August 22, 1997 of a verified motion for extension of time to file its
petition for thirty (30) days from August 28, 1997 or until September 27, 1997. 20 Said motion
contained the following certification against forum shopping 21 signed by Atty. Herbert A. Tria as
affiant:
CERTIFICATION
AGAINST FORUM SHOPPING
I/we hereby certify that I/we have not commenced any other action or proceeding involving the
same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that to the
best of my own knowledge, no such action or proceeding is pending in the Supreme Court, the
Court of Appeals, or any other tribunal or agency; that if I/we should thereafter learn that a similar
action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals,
or any other tribunal or agency, I/we undertake to report that fact within five (5) days therefrom to
this Honorable Court.
This motion having been granted, FESC subsequently filed its petition on September 26, 1997, this
time bearing a "verification and certification against forum-shopping" executed by one Teodoro P.
Lopez on September 24, 1997, 22 to wit:
VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING
in compliance with Section 4(e), Rule 45 in relation
to Section 2, Rule 42 of the Revised Rules of Civil Procedure
I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and state:
1. That I am the Manager, Claims Department of Filsov Shipping Company, the local agent
of petitioner in this case.
2. That I have caused the preparation of this Petition for Review on Certiorari.
3. That I have read the same and the allegations therein contained are true and correct based
on the records of this case.
4. That I certify that petitioner has not commenced any other action or proceeding involving
the same issues in the Supreme Court or Court of Appeals, or any other tribunal or agency, that to
the best of my own knowledge, no such action or proceeding is pending in the Supreme Court, the
Court of Appeals or any other tribunal or agency, that if I should thereafter learn that a similar
action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals,
or any other tribunal or agency, I undertake to report the fact within five (5) days therefrom to this
Honorable Court. (Italics supplied for emphasis.)
Reviewing the records, we find that the petition filed by MPA in G.R. No. 130150 then pending
with the Third Division was duly filed on August 29, 1997 with a copy thereof furnished on the
same date by registered mail to counsel for FESC. 23 Counsel of record for MPA. Atty. Jesus P.
Amparo, in his verification accompanying said petition dutifully revealed to the Court that —
xxx xxx xxx
3. Petitioner has not commenced any other action or proceeding involving the same issues in
this Honorable Court, the Court of Appeals or different Divisions thereof, or any other tribunal or
agency, but to the best of his knowledge, there is an action or proceeding pending in this Honorable
Court, entitled Far Eastern Shipping Co., Petitioner, vs. Philippine Ports Authority and Court of
Appeals with a Motion for Extension of time to file Petition For Review by Certiorari filed
sometime on August 18, 1987. If undersigned counsel will come to know of any other pending
action or claim filed or pending he undertakes to report such fact within five (5) days to this
Honorable Court.24 (Emphasis supplied.)
Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered mail on August 29, 1997
and taking judicial notice of the average period of time it takes local mail to reach its destination, by
reasonable estimation it would be fair to conclude that when FESC filed its petition in G.R. No.
130068 on September 26, 1997, it would already have received a copy of the former and would
then have knowledge of the pendency of the other petition initially filed with the First Division. It
was therefore incumbent upon FESC to inform the Court of that fact through its certification against
forum shopping. For failure to make such disclosure, it would appear that the aforequoted
certification accompanying the petition in G.R. No. 130068 is defective and could have been a
ground for dismissal thereof.
Even assuming that FESC had not yet received its copy of MPA's petition at the time it filed its
own petition and executed said certification, its signatory did state "that if I should thereafter learn
that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court
of Appeals or any other tribunal or agency, I undertake to report the fact within five (5) days
therefrom to this Honorable Court." 25 Scouring the records page by page in this case, we find that
no manifestation concordant with such undertaking was then or at any other time thereafter ever
22
filed by FESC nor was there any attempt to bring such matter to the attention of the Court.
Moreover, it cannot feign non-knowledge of the existence of such other petition because FESC
itself filed the motion for consolidation in G.R. No. 130150 of these two cases on April 24, 1998.
It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del Rosario, displays
an unprofessional tendency of taking the Rules for granted, in this instance exemplified by its pro
forma compliance therewith but apparently without full comprehension of and with less than
faithful commitment to its undertakings to this Court in the interest of just, speedy and orderly
administration of court proceedings.
As between the lawyer and the courts, a lawyer owes candor, fairness and good faith to the court.
26 He is an officer of the court exercising a privilege which is indispensable in the administration of
justice. 27 Candidness, especially towards the courts, is essential for the expeditious administration
of justice. Courts are entitled to expect only complete honesty from lawyers appearing and pleading
before them. 28 Candor in all dealings is the very essence of honorable membership in the legal
profession. 29 More specifically, a lawyer is obliged to observe the rules of procedure and not to
misuse them to defeat the ends of justice. 30 It behooves a lawyer, therefore, to exert every effort
and consider it his duty to assist in the speedy and efficient administration of justice. 31 Being an
officer of the court, a lawyer has a responsibility in the proper administration of justice. Like the
court itself, he is an instrument to advance its ends — the speedy, efficient, impartial, correct and
inexpensive adjudication of cases and the prompt satisfaction of final judgments. A lawyer should
not only help attain these objectives but should likewise avoid any unethical or improper practices
that impede, obstruct or prevent their realization, charged as he is with the primary task of assisting
in the speedy and efficient administration of justice.32
Sad to say, the members of said law firm sorely failed to observe their duties as responsible
members of the Bar. Their actuations are indicative of their predisposition to take lightly the
avowed duties of officers of the Court to promote respect for law and for legal processes. 33 We
cannot allow this state of things to pass judicial muster.
In view of the fact that at around the time these petitions were commenced, the 1997 Rules of Civil
Procedure had just taken effect, the Court treated infractions of the new Rules then with relative
liberality in evaluating full compliance therewith. Nevertheless, it would do well to remind all
concerned that the penal provisions of Circular No. 28-91 which remain operative provides, inter
alia:
3. Penalties. —
xxx xxx xxx
(c) The submission of a false certification under Par. 2 of the Circular shall likewise
constitute contempt of court, without prejudice to the filing of criminal action against the guilty
party. The lawyer may also be subjected to disciplinary proceedings.
It must be stressed that the certification against forum shopping ordained under the Rules is to be
executed by the petitioner, and not by counsel. Obviously it is the petitioner, and not always the
counsel whose professional services have been retained for a particular case, who is in the best
position to know whether he or it actually filed or caused the filing of a petition in that case. Hence,
a certification against forum shopping by counsel is a defective certification. It is clearly equivalent
to non-compliance with the requirement under Section 2, Rule 42 in relation to Section 4, Rule 45,
and constitutes a valid cause for dismissal of the petition.
Hence, the initial certification appended to the motion for extension of time to file petition in G.R.
No. 130068 executed in behalf of FESC by Atty. Tria is procedurally deficient. But considering that
it was a superfluity at that stage of the proceeding, it being unnecessary to file such a certification
with a mere motion for extension, we shall disregard such error. Besides, the certification
subsequently executed by Teodoro P. Lopez in behalf of FESC cures that defect to a certain extent,
despite the inaccuracies earlier pointed out. In the same vein, we shall consider the verification
signed in behalf of MPA by its counsel, Atty. Amparo, in G.R. No. 130150 as substantial
compliance inasmuch as it served the purpose of the Rules of informing the Court of the pendency
of another action or proceeding involving the same issues.
It bears stressing that procedural rules are instruments in the speedy and efficient administration of
justice. They should be used to achieve such end and not to derail it. 34
Counsel for PPA did not make matters any better. Despite the fact that, save for the Solicitor
General at the time, the same legal team of the Office of the Solicitor General (OSG, for short)
composed of Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon, with
the addition of Assistant Solicitor General Pio C. Guerrero very much later in the proceedings,
represented PPA throughout the appellate proceedings in both G.R. No. 130068 and G.R. No.
130150 and was presumably fully acquainted with the facts and issues of the case, it took the OSG
an inordinately and almost unreasonably long period of time to file its comment, thus unduly
delaying the resolution of these cases. It took several changes of leadership in the OSG — from
Silvestre H. Bello III to Romeo C. dela Cruz and, finally, Ricardo P. Galvez — before the comment
in behalf of PPA was finally filed.
In G.R. No. 130068, it took eight (8) motions for extension of time totaling 210 days, a warning
that no further extensions shall be granted, and personal service on the Solicitor General himself of
the resolution requiring the filing of such comment before the OSG indulged the Court with the
long required comment on July 10, 1998. 35 This, despite the fact that said office was required to
file its comment way back on November 12, 1997. 36 A closer scrutiny of the records likewise
indicates that petitoner FESC was not even furnished a copy of said comment as required by
Section 5, Rule 42. Instead, a copy thereof was inadvertently furnished to MPA which, from the
point of view of G.R. No. 130068, was a non-party. 37 The OSG fared slightly better in G.R. No.
130150 in that it took only six (6) extensions, or a total of 180 days, before the comment was finally
filed. 38 And while it properly furnished petitioner MPA with a copy of its comment, it would have
been more desirable and expedient in this case to have furnished its therein co-respondent FESC
with a copy thereof, if only as a matter of professional courtesy. 39
This undeniably dilatory disinclination of the OSG to seasonably file required pleadings constitutes
deplorable disservice to the tax-paying public and can only be categorized as censurable
inefficiency on the part of the government law office. This is most certainly professionally
unbecoming of the OSG.
Another thing that baffles the Court is why the OSG did not take the inititive of filing a motion for
consolidation in either G.R. No. 130068 or G.R. No. 130150, considering its familiarity with the
23
background of the case and if only to make its job easier by having to prepare and file only one
comment. It could not have been unaware of the pendency of one or the other petition because,
being counsel for respondent in both cases, petitioner is required to furnish it with a copy of the
petition under pain of dismissal of the petition for failure otherwise. 40
Besides, in G.R. 130068, it prefaces its discussions thus —
Incidentally, the Manila Pilots' Association (MPA), one of the defendants-appellants in the case
before the respondent Court of Appeals, has taken a separate appeal from the said decision to this
Honorable Court, which was docketed as G.R. No. 130150 and entitled "Manila Pilots' Association,
Petitioner, versus Philippine Ports Authority and Far Eastern Shipping Co., Respondents." 41
Similarly, in G.R. No. 130150, it states —
Incidentally, respondent Far Eastern Shipping Co. (FESC) had also taken an appeal from the said
decision to this Honorable Court, docketed as G.R. No. 130068, entitled "Far Eastern Shipping Co.
vs. Court of Appeals and Philippine Ports Authority." 42
We find here a lackadaisical attitude and complacency on the part of the OSG in the handling of its
cases and an almost reflexive propensity to move for countless extensions, as if to test the patience
of the Court, before favoring it with the timely submission of required pleadings.
It must be emphasized that the Court can resolve cases only as fast as the respective parties in a
case file the necessary pleadings. The OSG, by needlessly extending the pendency of these cases
through its numerous motions for extension, came very close to exhausting this Court's forbearance
and has regrettably fallen short of its duties as the People's Tribune.
The OSG is reminded that just like other members of the Bar, the canons under the Code of
Professional Responsibility apply with equal force on lawyers in government service in the
discharge of their official tasks. 43 These ethical duties are rendered even more exacting as to them
because, as government counsel, they have the added duty to abide by the policy of the State to
promote a high standard of ethics in public service. 44 Furthermore, it is incumbent upon the OSG,
as part of the government bureaucracy, to perform and discharge its duties with the highest degree
of professionalism, intelligence and skill 45 and to extend prompt, courteous and adequate service
to the public. 46
Now, on the merits of the case. After a judicious examination of the records of this case, the
pleadings filed, and the evidence presented by the parties in the two petitions, we find no cogent
reason to reverse and set aside the questioned decision. While not entirely a case of first impression,
we shall discuss the issues seriatim and, correlatively by way of a judicial once-over, inasmuch as
the matters raised in both petitions beg for validation and updating of well-worn maritime
jurisprudence. Thereby, we shall write finis to the endless finger-pointing in this shipping mishap
which has been stretched beyond the limits of judicial tolerance.
The Port of Manila is within the Manila Pilotage District which is under compulsory pilotage
pursuant to Section 8, Article III of Philippine Ports Authority Administrative Order No. 03-85, 47
which provides that:
Sec. 8. Compulsor Pilotage Service. — For entering a harbor and anchoring thereat, or passing
through rivers or straits within a pilotage district, as well as docking and undocking at any
pier/wharf, or shifting from one berth or another, every vessel engaged in coastwise and foreign
trade shall be under compulsory pilotage. . . .
In case of compulsory pilotage, the respective duties and responsibilities of the compulsory pilot
and the master have been specified by the same regulation in this wise:
Sec. 11. Control of vessels and liability for damage. — On compulsory pilotage grounds, the
Harbor Pilot providing the service to a vessel shall be responsible for the damage caused to a vessel
or to life and property at ports due to his negligence or fault. He can only be absolved from liability
if the accident is caused by force majeure or natural calamities provided he has exercised prudence
and extra diligence to prevent or minimize damage.
The Master shall retain overall command of the vessel even on pilotage grounds whereby he can
countermand or overrule the order or command of the Harbor Pilot on beard. In such event, any
damage caused to a vessel or to life and property at ports by reason of the fault or negligence of the
Master shall be the responsibility and liability of the registered owner of the vessel concerned
without prejudice to recourse against said Master.
Such liability of the owner or Master of the vessel or its pilots shall be determined by competent
authority in appropriate proceedings in the light of the facts and circumstances of each particular
case.
Sec. 32. Duties and responsibilities of the Pilot or Pilots' Association. — The duties and
responsibilities of the Harbor Pilot shall be as follows:
xxx xxx xxx
f) a pilot shall be held responsible for the direction of a vessel from the time he assumes his
work as a pilot thereof until he leaves it anchored or berthed safely; Provided, however, that his
responsibility shall cease at the moment the Master neglects or refuses to carry out hisorder.
Customs Administrative Order No. 15-65 issued twenty years earlier likewise provided in Chapter I
thereof for the responsibilities of pilots:
Par. XXXIX. — A Pilot shall be held responsible for the direction of a vessel from the time he
assumes control thereof until he leaves it anchored free from shoal: Provided, That his
responsibility shall cease at the moment the master neglects or refuses to carry out his instructions.
xxx xxx xxx
Par. XLIV. — Pilots shall properly and safely secure or anchor vessels under their control when
requested to do so by the master of such vessels.
I. G.R. No. 130068
24
Petitioner FESC faults the respondent court with serious error in not holding MPA and Capt.
Gavino solely responsible for the damages cause to the pier. It avers that since the vessel was under
compulsory pilotage at the time with Capt. Gavino in command and having exclusive control of the
vessel during the docking maneuvers, then the latter should be responsible for damages caused to
the pier. 48 It likewise holds the appellate court in error for holding that the master of the ship,
Capt. Kabankov, did not exercise the required diligence demanded by the circumstances. 49
We start our discussion of the successive issues bearing in mind the evidentiary rule in American
jurisprudence that there is a presumption of fault against a moving vessel that strikes a stationary
object such as a dock or navigational aid. In admiralty, this presumption does more than merely
require the ship to go forward and produce some evidence on the presumptive matter. The moving
vessel must show that it was without fault or that the collision was occasioned by the fault of the
stationary object or was the result of inevitable accident. It has been held that such vessel must
exhaust every reasonable possibility which the circumstances admit and show that in each, they did
all that reasonable care required. 50 In the absence of sufficient proof in rebuttal, the presumption
of fault attaches to a moving vessel which collides with a fixed object and makes a prima facie case
of fault against the vessel. 51 Logic and experience support this presumption:
The common sense behind the rule makes the burden a heavy one. Such accidents simply do not
occur in the ordinary course of things unless the vessel has been mismanaged in some way. It is nor
sufficient for the respondent to produce witnesses who testify that as soon as the danger became
apparent everything possible was done to avoid an accident. The question remains, How then did
the collision occur? The answer must be either that, in spite of the testimony of the witnesses, what
was done was too little or too late or, if not, then the vessel was at fault for being in a position in
which an unavoidable collision would occur. 52
The task, therefore, in these cases is to pinpoint who was negligent — the master of the ship, the
harbor pilot or both.
A pilot, in maritime law, is a person duly qualified, and licensed, to conduct a vessel into or out of
ports, or in certain waters. In a broad sense, the term "pilot" includes both (1) those whose duty it is
to guide vessels into or out of ports, or in particular waters and (2) those entrusted with the
navigation of vessels on the high seas. 53 However, the term "pilot" is more generally understood
as a person taken on board at a particular place for the purpose of conducting a ship through a river,
road or channel, or from a port. 54
Under English and American authorities, generally speaking, the pilot supersedes the master for the
time being in the command and navigation of the ship, and his orders must be obeyed in all matters
connected with her navigation. He becomes the master pro hac vice and should give all directions
as to speed, course, stopping and reversing anchoring, towing and the like. And when a licensed
pilot is employed in a place where pilotage is compulsory, it is his duty to insist on having effective
control of the vessel, or to decline to act as pilot. Under certain systems of foreign law, the pilot
does not take entire charge of the vessel, but is deemed merely the adviser of the master, who
retains command and control of the navigation even in localities where pilotage is compulsory. 55
It is quite common for states and localities to provide for compulsory pilotage, and safety laws have
been enacted requiring vessels approaching their ports, with certain exceptions, to take on board
pilots duly licensed under local law. The purpose of these laws is to create a body of seamen
thoroughly acquainted with the harbor, to pilot vessels seeking to enter or depart, and thus protect
life and property from the dangers of navigation. 56
In line with such established doctrines, Chapter II of Customs Administrative Order No. 15-65
prescribes the rules for compulsory pilotage in the covered pilotage districts, among which is the
Manila Pilotage District,
viz. —
PARAGRAPH I. — Pilotage for entering a harbor and anchoring thereat, as well as docking and
undocking in any pier or shifting from one berth to another shall be compulsory, except
Government vessels and vessels of foreign governments entitled to courtesy, and other vessels
engaged solely in river or harbor work, or in a daily ferry service between ports which shall be
exempt from compulsory pilotage provisions of these regulations: provided, however, that
compulsory pilotage shall not apply in pilotage districts whose optional pilotage is allowed under
these regulations.
Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into Berth 4 of the Manila
International Port. Upon assuming such office as compulsory pilot, Capt. Gavino is held to the
universally accepted high standards of care and diligence required of a pilot, whereby he assumes to
have skill and knowledge in respect to navigation in the particular waters over which his license
extends superior to and more to be trusted than that of the master. 57 A pilot 57 should have a
thorough knowledge of general and local regulations and physical conditions affecting the vessel in
his charge and the waters for which he is licensed, such as a particular harbor or river.
He is not held to the highest possible degree of skill and care, but must have and exercise the
ordinary skill and care demanded by the circumstances, and usually shown by an expert in his
profession. Under extraordinary circumstancesm, a pilot must exercise extraordinary care. 58
In Atlee vs. The Northwesrern Union Packet Company. 59 Mr. Justice Miller spelled out in great
detail the duties of a pilot:
. . . (T)he pilot of a river steamer, like the harbor pilot, is selected for his personal knowledge of the
topography through which he steers his vessel. In the long course of a thousand miles in one of
these rivers, he must be familiar with the appearance of the shore on each side of the river as he
goes along. Its banks, towns, its landings, its houses and trees, are all landmarks by which he steers
his vessel. The compass is of little use to him. He must know where the navigable channel is, in its
relation to all these external objects, especially in the night. He must also be familiar with all
dangers that are permanently located in the course of the river, as sand-bars, snags, sunken rocks or
trees or abandoned vessels orbarges. All this he must know and remember and avoid. To do this, he
must be constantly informed of the changes in the current of the river, of the sand-bars newly
made,of logs or snags, or other objects newly presented, against which his vessel might be injured.
xxx xxx xxx
It may be said that this is exacting a very high order of ability in a pilot. But when we consider the
value of the lives and property committed to their control, for in this they are absolute masters, the
high compensation they receive, the care which Congress has taken to secure by rigid and frequent
25
examinations and renewal of licenses, this very class of skill, we do not think we fix the standard
too high.
Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to measure up to such
strict standard of care and diligence required of pilots in the performance of their duties. Witness
this testimony of Capt. Gavino:
Court: You have testified before that the reason why the vessel bumped the pier was because the
anchor was not released immediately or as soon as you have given the order. Do you remember
having srated that?
A Yes, your Honor.
Q And you gave this order to the captain of the vessel?
A Yes, your Honor.
Q By that testimony, you are leading the Court to understand that if that anchor was
released immediately at the time you gave the order, the incident would not have happened. Is that
correct?
A Yes, sir, but actually it was only a presumption on my part because there was a
commotion between the officers who are in charge of the dropping of the anchor and the captain. I
could not understand their language, it was in Russian, so I presumed the anchor was not dropped
on time.
Q So, you are not sure whether it was really dropped on time or not?
A I am not sure, your Honor.
xxx xxx xxx
Q You are not even sure what could have caused the incident. What factor could have
caused the incident?
A Well, in this case now, because either the anchor was not dropped on time or the anchor
did not hold, that was the cause of the incident, your Honor. 60
It is disconcertingly riddled with too much incertitude and manifests a seeming indifference for the
possibly injurious consequences his commands as pilot may have. Prudence required that he, as
pilot, should have made sure that his directions were promptly and strictly followed. As correctly
noted by the trial court —
Moreover, assuming that he did indeed give the command to drop the anchor on time, as pilot he
should have seen to it that the order was carried out, and he could have done this in a number of
ways, one of which was to inspect the bow of the vessel where the anchor mechanism was installed.
Of course, Captain Gavino makes reference to a commotion among the crew members which
supposedly caused the delay in the execution of the command. This account was reflected in the
pilot's report prepared four hours later, but Capt. Kavankov, while not admitting whether or not
such a commotion occurred, maintained that the command to drop anchor was followed
"immediately and precisely." Hence, the Court cannot give much weight or consideration to this
portion of Gavino's testimony." 61
An act may be negligent if it is done without the competence that a reasonable person in the
position of the actor would recognize as necessary to prevent it from creating an unreasonable risk
of harm to another. 62 Those who undertake any work calling for special skills are required not
only to exercise reasonable care in what they do but also possess a standard minimum of special
knowledge and ability. 63
Every man who offers his services to another, and is employed, assumes to exercise in the
employment such skills he possesses, with a reasonable degree of diligence. In all these
employments where peculiar skill is requisite, if one offers his services he is understood as holding
himself out to the public as possessing the degree of skill commonly possessed by others in the
same employment, and if his pretensions are unfounded he commits a species of fraud on every
man who employs him in reliance on his public profession. 64
Furthermore, there is an obligation on all persons to take the care which, under ordinary
circumstances of the case, a reasonable and prudent man would take, and the omission of that care
constitutes negligence. 65 Generally, the degree of care required is graduated according to the
danger a person or property attendant upon the activity which the actor pursues or the
instrumentality which he uses. The greater the danger the greater the degree of care required. What
is ordinary under extraordinary of conditions is dictated by those conditions; extraordinary risk
demands extraordinary care. Similarly, the more imminent the danger, the higher the degree of care.
66
We give our imprimatur to the bases for the conclusion of the Court of Appeals that Capt. Gavino
was indeed negligent in the performance of his duties:
xxx xxx xxx
. . . As can be gleaned from the logbook, Gavino ordered the left anchor and two (2) shackles
dropped at 8:30 o'clock in the morning. He ordered the engines of the vessel stopped at 8:31
o'clock. By then,Gavino must have realized that the anchor did not hit a hard object and was not
clawed so as to reduce the momentum of the vessel. In point of fact, the vessel continued travelling
towards the pier at the same speed. Gavino failed to react, At 8:32 o'clock, the two (2) tugboats
began to push the stern part of the vessel from the port side bur the momentum of the vessel was
not contained. Still, Gavino did not react. He did not even order the other anchor and two (2) more
shackles dropped to arrest the momentum of the vessel. Neither did he order full-astern. It was only
at 8:34 o'clock, or four (4) minutes, after the anchor was dropped that Gavino reacted. But his
reaction was even (haphazard) because instead of arresting fully the momentum of the vessel with
the help of the tugboats, Gavino ordered merely "half-astern". It took Gavino another minute to
order a "full-astern". By then, it was too late. The vessel's momentum could no longer be arrested
and, barely a minute thereafter, the bow of the vessel hit the apron of the pier. Patently, Gavino
miscalculated. He failed to react and undertake adequate measures to arrest fully the momentum of
the vessel after the anchor failed to claw to the seabed. When he reacted, the same was even
(haphazard). Gavino failed to reckon the bulk of the vessel, its size and its cargo. He erroneously
26
believed that only one (1) anchor would suffice and even when the anchor failed to claw into the
seabed or against a hard object in the seabed, Gavino failed to order the other anchor dropped
immediately. His claim that the anchor was dropped when the vessel was only 1,000 feet from the
pier is but a belated attempt to extricate himself from the quagmire of his own insouciance and
negligence. In sum, then, Appellants' claim that the incident was caused by "force majeure" is
barren of factual basis.
xxx xxx xxx
The harbor pilots are especially trained for this job. In the Philippines, one may not be a harbor
pilot unless he passed the required examination and training conducted then by the Bureau of
Custom, under Customs Administrative Order No. 15-65, now under the Philippine Ports Authority
under PPA Administrative Order 63-85, Paragraph XXXIX of the Customs Administrative Order
No. 15-65 provides that "the pilot shall be held responsible for the direction of the vessel from the
time he assumes control thereof, until he leaves it anchored free from shoal: Provided, that his
responsibility shall cease at the.moment the master neglects or refuse(s) to carry out his
instructions." The overall direction regarding the procedure for docking and undocking the vessel
emanates from the harbor pilot. In the present recourse, Gavino failed to live up to his
responsibilities and exercise reasonable care or that degree of care required by the exigencies of the
occasion. Failure on his part to exercise the degree of care demanded by the circumstances is
negligence (Reese versus Philadelphia & RR Co. 239 US 363, 60 L ed. 384, 57 Am Jur, 2d page
418). 67
This affirms the findings of the trial court regarding Capt. Gavino's negligence:
This discussion should not however, divert the court from the fact that negligence in manuevering
the vessel must be attributed to Capt. Senen Gavino. He was an experienced pilot and by this time
should have long familiarized himself with the depth of the port and the distance he could keep
between the vessel and port in order to berth safely. 68
The negligence on the part of Capt. Gavino is evident; but Capt. Kabancov is no less responsible for
the allision. His unconcerned lethargy as master of the ship in the face of troublous exigence
constitutes negligence.
While it is indubitable that in exercising his functions a pilot is in sole command of the ship 69 and
supersedes the master for the time being in the command and navigation of a ship and that he
becomes master pro hac vice of a vessel piloted by him, 70 there is overwhelming authority to the
effect that the master does not surrender his vessel to the pilot and the pilot is not the master. The
master is still in command of the vessel notwithstanding the presence of a pilot. There are occasions
when the master may and should interfere and even displace the pilot, as when the pilot is
obviously incompetent or intoxicated and the circumstances may require the master to displace a
compulsory pilot because of incompetency or physical incapacity. If, however, the master does nor
observe that a compulsory pilot is incompetent or physically incapacitated, the master is justified in
relying on the pilot, but not blindly. 71
The master is not wholly absolved from his duties while a pilot is on board his vessel, and may
advise with or offer suggestions to him. He is still in command of the vessel, except so far as her
navigation is concerned, and must cause the ordinary work of the vessel to be properly carried on
and the usual precaution taken. Thus, in particular, he is bound to see that there is sufficient watch
on deck, and that the men are attentive to their duties, also that engines are stopped, towlines cast
off, and the anchors clear and ready to go at the pilot's order. 72
A perusal of Capt. Kabankov's testimony makes it apparent that he was remiss in the discharge of
his duties as master of the ship, leaving the entire docking procedure up to the pilot, instead of
maintaining watchful vigilance over this risky maneuver:
Q Will you please tell us whether you have the right to intervene in docking of your ship in
the harbor?
A No sir, I have no right to intervene in time of docking, only in case there is imminent
danger to the vessel and to the pier.
Q Did you ever intervene during the time that your ship was being docked by Capt. Gavino?
A No sir, I did not intervene at the time when the pilot was docking my ship.
Q Up to the time it was actually docked at the pier, is that correct?
A No sir, I did not intervene up to the very moment when the vessel was docked.
xxx xxx xxx
Atty. Del Rosario (to the witness)
Q Mr. Witness, what happened, if any, or was there anything unusual that happened during
the docking?
A Yes sir, our ship touched ihe pier and the pier was damaged.
Court (to the witness)
Q When you said touched the pier, are you leading the court to understand that your ship
bumped the pier?
A I believe that my vessel only touched the pier but the impact was very weak.
Q Do you know whether the pier was damaged as a result of that slight or weak impact?
A Yes sir, after the pier was damaged.
xxx xxx xxx
Q Being most concerned with the safety of your vessel, in the maneuvering of your vessel to
the port, did you observe anything irregular in the maneuvering by Capt. Gavino at the time he was
trying to cause the vessel to be docked at the pier?
27
A You mean the action of Capt. Gavino or his condition? A Yes sir, I knew that.

Court: Q If you knew that the shackles were not enough to hold the ship, did you not make any
protest to the pilot?
Q Not the actuation that conform to the safety maneuver of the ship to the harbor?
A No sir, after the incident, that was my assumption.
A No sir, it was a usual docking.
Q Did you come to know later whether that presumption is correct?
Q By that statement of yours, you are leading the court to understand that there was nothing
irregular in the docking of the ship? A I still don't know the ground in the harbor or the depths.

A Yes sir, during the initial period of the docking, there was nothing unusual that happened. Q So from the beginning, you were not competent whether the 2 shackles were also dropped
to hold the ship?
Q What about in the last portion of the docking of the ship, was there anything unusual or
abnormal that happened? A No sir, at the beginning, I did not doubt it because I believe Capt. Gavino to be an
experienced pilot and he should be more aware as to the depths of the harbor and the ground and I
A None Your Honor, I believe that Capt. Gavino thought that the anchor could keep or hold was confident in his actions.
the vessel.
xxx xxx xxx
Q You want us to understand, Mr. Witness, that the dropping of the anchor of the vessel was
nor timely? Solicitor Abad (to the witness)

A I don't know the depth of this port but I think, if the anchor was dropped earlier and with Q Now, you were standing with the pilot on the bridge of the vessel before the inicident
more shackles, there could not have been an incident. happened, were you not?

Q So you could not precisely tell the court that the dropping of the anchor was timery A Yes sir, all the time, I was standing with the pilot.
because you are not well aware of the seabed, is that correct?
Q And so whatever the pilot saw, you could also see from that point of view?
A Yes sir, that is right.
A That is right.
xxx xxx xxx
Q Whatever the piler can read from the panel of the bridge, you also could read, is that
Q Alright, Capt. Kavankov, did you come to know later whether the anchor held its ground correct?
so much so that the vessel could not travel?
A What is the meaning of panel?
A It is difficult for me to say definitely. I believe that the anchor did not hold the ship.
Q All indications necessary for men on the bridge to be informed of the movements of the
Q You mean you don't know whether the anchor blades stuck to the ground to stop the ship ship?
from further moving?
A That is right.
A Yes sir, it is possible.
Q And whatever sound the captain . . . Capt. Gavino would hear from the bridge, you could
Q What is possible? also hear?

A I think, the 2 shackles were not enough to hold the vessel. A That is right.

Q Did you know that the 2 shackles were dropped? Q Now, you said that when the command to lower the anchor was given, it was obeyed, is
that right?

28
 Q Since it affects not only the safety of the port or pier, but also the safety of the vessel and
A This command was executed by the third mate and boatswain. the cargo, is it not?

Court (to the witness) A That is right.

Q Mr. Witness, earlier in today's hearing, you said that you did not intervene with the duties Q So that, I assume that you were watching Capt. Gavino very closely at the time he was
of the pilot and that, in your opinion, you can only intervene if the ship is placed in imminent making his commands?
danger, is that correct?
A I was close to him, I was hearing his command and being executed.
A That is right, I did say that.
Q And that you were also alert for any possible mistakes he might commit in the
Q In your observation before the incident actually happened, did you observe whether or not maneuvering of the vessel?
the ship, before the actual incident, the ship was placed in imminent danger?
A Yes sir, that is right.
A No sir, I did not observe.
Q But at no time during the maneuver did you issue order contrary to the orders Capt.
Q By that answer, are you leading the court to understand that because you did not intervene Gavino made?
and because you believed that it was your duty to intervene when the vessel is placed in imminent
danger to which you did not observe any imminent danger thereof, you have not intervened in any A No sir.
manner to the command of the pilot?
Q So that you were in full accord with all of Capt. Gavino's orders?
A That is right, sir.
A Yes sir.
xxx xxx xxx
Q Because, otherwise, you would have issued order that would supersede his own order?
Q Assuminp that you disagreed with the pilot regarding the step being taken by the pilot in
maneuvering the vessel, whose command will prevail, in case of imminent danger to the vessel? A In that case, I should t,ke him away from his command or remove the command from
him.
A I did nor consider the situation as having an imminent danger. I believed that the vessel
will dock alongside the pier. Court (to the witness)

Q You want us to understand that you did not see an imminent danger to your ship, is that Q You were in full accord with the steps being taken by Capt. Gavino because you relied on
what you mean? his knowledge, on his familiarity of the seabed and shoals and other surroundings or conditions
under the sea, is that correct?
A Yes sir, up to the very last moment, I believed that there was no imminent danger.
A Yes sir, that is right.
Q Because of that, did you ever intervene in the command of the pilot?
xxx xxx xxx
A Yes sir, I did not intervene because I believed that the command of the pilot to be correct.
Solicitor Abad (to the witness)
Solicitor Abad (to the witness)
Q And so after the anchors were ordered dropped and they did not take hold of the seabed,
Q As a captain of M/V Pavlodar, you consider docking maneuvers a serious matter, is it you were alerted that there was danger already on hand?
not?
A No sir, there was no imminent danger to the vessel.
A Yes sir, that is right.
Q Do you mean to tell us that even if the anchor was supposed to take hold of the bottom
and it did not, there was no danger to the ship?

29
 Q Now, after the anchor was dropped, was there any point in time that you felt that the
A Yes sir, because the anchor dragged on the ground later. vessel was in imminent danger.

Q And after a few moments when the anchor should have taken hold the seabed bur not
done (sic), as you expected, you already were alerted that there was danger to the ship, is that
correct?
A Yes sir, I was alerted but there was no danger.
Q And you were alerted that somebody was wrong?
A No, at that time, the vessel was not in imminent, danger, sir. 74
This cavalier appraisal of the event by Capt. Kabankov is disturbingly antipodal to Capt. Gavino's
anxious assessment of the situation:
Q When a pilot is on board a vessel, it is the piler's command which should be followed at
that moment until the vessel is, or goes to port or reaches port?

A Yes sir, I was alerted.
Q And this alert vou assumed was the ordinary alertness that you have for normal docking?
A Yes sir, I mean that it was usual condition of any man in time of docking to be alert.
Q And that is the same alertness when the anchor did not hold onto the ground, is that
correct?
A Yes sir, me and Capt. Gavino (thought) that the anchor will hold the ground.
A Yes, your Honor, but it does not take away from the Captain his prerogative to
countermand the pilot.
Q In what way?
A In any case, which he thinks the pilot is not maneuvering correctly, the Captain always
has the prerogative to countermand the pilot's order.
Q But insofar as competence, efficiency and functional knowledee of the seabed which are
vital or decisive in the safety (sic) bringing of a vessel to the port, he is not competent?

Q Since, as you said that you agreed all the while with the orders of Capt. Gavino, you also
therefore agreed with him in his failure to take necessary precaution against the eventuality that the
anchor will not hold as expected?
Atty. Del Rosario:
A Yes, your Honor. That is why they hire a pilot in an advisory capacity, but still, the safety
of the vessel rest(s) upon the Captain, the Master of the vessel.
Q In this case, there was not a disagreement between you and the Captain of the vessel in
the bringing of the vessel to port?

May I ask that the question . . . A No, your Honor.

Solicitor Abad: Court:

Never mind, I will reform the question. May proceed.

xxx xxx xxx Atty. Catris:

Solicitor Abad (to the witness) In fact, the Master of the vessel testified here that he was all along in conformity with the orders
you, gave to him, and, as matter of fact, as he said, he obeyed all your orders. Can you tell, if in the
Q Is it not a fact that the vessel bumped the pier? course of giving such normal orders for the saf(e) docking of the MV Pavlodar, do you remember
of any instance that the Master of the vessel did not obey your command for the safety docking of
A That is right, it bumped the pier. the MV Pavlodar?

Q For the main reason that the anchor of the vessel did not hold the ground as expected? Atty. del Rosario:

A Yes sir, that is my opinion. 73 Already answered, he already said yes sir.

Further, on redirect examination, Capt. Kabankov fortified his apathetic assessment of the situation: Court:

30
Yes, he has just answered yes sir to the Court that there was no disagreement insofar as the bringing
of the vessel safely to the port.
Atty. Catris:
But in this instance of docking of the MV Pavlodar, do you remember of a time during the course
of the docking that the MV Pavlodar was in imminent danger of bumping the pier?
A When we were about more than one thousand meters from the pier, I think, the anchor
was not holding, so I immediately ordered to push the bow at a fourth quarter, at the back of the
vessel in order to swing the bow away from the pier and at the same time, I ordered for a full astern
of the engine. 75
These conflicting reactions can only imply, at the very least, unmindful disregard or, worse,
neglectful relinquishment of duty by the shipmaster, tantamount to negligence.
The findings of the trial court on this aspect is noteworthy:
For, while the pilot Gavino may indeed have been charged with the task of docking the vessel in the
berthing space, it is undisputed that the master of the vessel had the corresponding duty to
countermand any of the orders made by the pilot, and even maneuver the vessel himself, in case of
imminent danger to the vessel and the port.
In fact, in his testimony, Capt. Kavankov admitted that all throughour the man(eu)vering
procedures he did not notice anything was going wrong, and even observed that the order given to
drop the anchor was done at the proper time. He even ventured the opinion that the accident
occurred because the anchor failed to take hold but that this did not alarm him because.there was
still time to drop a second anchor.
Under normal circumstances, the abovementioned facts would have caused the master of a vessel to
take charge of the situation and see to the man(eu)vering of the vessel himself. Instead, Capt.
Kavankov chose to rely blindly upon his pilot, who by this time was proven ill-equipped to cope
with the situation.
xxx xxx xxx
It is apparent that Gavino was negligent but Far Eastern's employee Capt. Kavankov was no lesss
responsible for as master of the vessel he stood by the pilot during the man(eu)vering procedures
and was privy to every move the latter made, as well as the vessel's response to each of the
commands. His choice to rely blindly upon the pilot's skills, to the point that despite being
appraised of a notice of alert he continued to relinquish control of the vessel to Gavino, shows
indubitably that he was not performing his duties with the diligence required of him and therefore
may be charged with negligence along with defend;int Gavino. 76
As correctly affirmed by the Court of Appeals —
We are in full accord with the findings and disquisitions of the Court a quo.
In the present recourse, Captain Viktor Kavankov had been a mariner for thirty-two years before
the incident. When Gavino was (in) the command of the vessel, Kavankov was beside Gavino,
relaying the commands or orders of Gavino to the crewmembers-officers of the vessel concerned.
He was thus fully aware of the docking maneuvers and procedure Gavino undertook to dock the
vessel. Irrefragably, Kavankov was fully aware of the bulk and size of the vessel and its cargo as
well as the weight of the vessel. Kavankov categorically admitted that, when the anchor and two (2)
shackles were dropped to the sea floor, the claws of the anchor did not hitch on to any hard object
in the seabed. The momentum of the vessel was not arrested. The use of the two (2) tugboats was
insufficient. The momentum of the vessel, although a little bit arrested, continued (sic) the vessel
going straightforward with its bow towards the port (Exhibit "A-1 ). There was thus a need for the
vessel to move "full-astern" and to drop the other anchor with another shackle or two (2), for the
vessel to avoid hitting the pier. Kavankov refused to act even as Gavino failed to act. Even as
Gavino gave mere "half-astern" order, Kavankov supinely stood by. The vessel was already about
twenty (20) meters away from the pier when Gavino gave the "full-astern" order. Even then,
Kavankov did nothing to prevent the vessel from hitting the pier simply because he relied on the
competence and plan of Gavino. While the "full-astern'' maneuver momentarily arrested the
momentum of the vessel, it was, by then, too late. All along, Kavankov stood supinely beside
Gavino, doing nothing but relay the commands of Gavino. Inscrutably, then, Kavankov was
negligent.
xxx xxx xxx
The stark incompetence of Kavankov is competent evidence to prove the unseaworthiness of the
vessel. It has been held that the incompetence of the navigator, the master of the vessel or its crew
makes the vessel unseaworthy (Tug Ocean Prince versus United States of America, 584 F. 2nd,
page 1151). Hence, the Appellant FESC is likewise liable for the damage sustained by the
Appellee. 77
We find strong and well-reasoned support in time-tested American maritime jurisprudence, on
which much of our laws and jurisprudence on the matter are based, for the conclusions of the Court
of Appeals adjudging both Capt. Gavino and Capt. Kabankov negligent.
As early as 1869, the U.S. Supreme Court declared, through Mr. Justice Swayne, in The Steamship
China vs. Walsh, 78 that it is the duty of the master to interfere in cases of the pilot's intoxication or
manifest incapacity, in cases of danger which he does not foresee, and in all cases of great
necessity. The master has the same power to displace the pilot that he has to remove any
subordinate officer of the vessel, at his discretion.
In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown, emphatically ruled that:
Nor are rye satisfied with the conduct of the master in leaving the pilot in sole charge of the vessel.
While the pilot doubtless supersedes the master for the time being in the command and navigation
of the ship, and his orders must be obeyed in all matters connected with her navigation, the master
is not wholly absolved from his duties while the pilot is on board, and may advise with him, and
even displace him in case he is intoxicated or manifestly incompetent. He is still in command of the
vessel, except so far as her navigation is concerned, and bound to see that there is a sufficient watch
on deck, and that the men are attentive to their duties.
31
. . . (N)orwithstanding the pilot has charge, it is the duty of the master to prevent accident, and not
to abandon the vessel entirely to the pilot; but that there are certain duties he has to discharge
(notwithstanding there is a pilot on board) for the benefit of the owners. . . . that in well conducted
ships the master does not regard the presence of a duly licensed pilot in compulsory pilot waters as
freeing him from every, obligation to attend to the safety of the vessel; but that, while the master
sees that his officers and crew duly attend to the pilot's orders, he himself is bound to keep a
vigilant eye on the navigation of the vessel, and, when exceptional circumstances exist, not only to
urge upon the pilot to use every precaution, but to insist upon such being taken. 79 (Italics for
emphasis.)
In Jure vs. United Fruit Co., 80 which, like the present petitions, involved compulsory pilotage,
with a similar scenario where at and prior to the time of injury, the vessel was in the charge of a
pilot with the master on the bridge of the vessel beside said pilot, the court therein ruled:
The authority of the master of a vessel is not in complete abeyance while a pilot, who is required by
law to be accepted, is in discharge of his functions. . . . It is the duty of the master to interfere in
cases of the pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee,
and in all cases of great necessity. The master has the same power to displace the pilot that he has to
remove any subordinate officer of the vessel. He may exercise it, or not, according to his discretion.
There was evidence to support findings that piaintiff's injury was due to the negligent operation of
the Atenas, and that the master of that vessel was negligent in failing to take action to avoid
endangering a vessel situated as the City of Canton was and persons or property thereon.
A phase of the evidence furnished support for the inferences . . . that he negligently failed to
suggest to the pilot the danger which was disclosed, and means of avoiding such danger; and that
the master's negligence in failing to give timelt admonition to the pilot proximately contributed to
the injury complained of. We are of opinion that the evidence mentioned tended to prove conduct of
the pilot, known to the master, giving rise to a case of danger or great necessity, calling for the
intervention of the master. A master of a vessel is not without fault in acquiescing in canduct of a
pilot which involves apparent and avoidable danger, whether such danger is to the vessel upon
which the pilot is, or to another vessel, or persons or property thereon or on shore. (Emphasis ours.)
Still in another case involving a nearly identical setting, the captain of a vessel alongside the
compulsory pilot was deemed to be negligent, since, in the words of the court, "he was in a position
to exercise his superior authority if he had deemed the speed excessive on the occasion in question.
I think it was clearly negligent of him not to have recognized the danger to any craft moored at
Gravell Dock and that he should have directed the pilot to reduce his speed as required by the local
governmental regulations. His failure amounted to negligence and renders the respondent liable."
81 (Emphasis supplied.) Though a compulsory pilot might be regarded as an independent
contractor, he is at all times subject to the ultimate control of the ship's master. 82
In sum, where a compulsory pilot is in charge of a ship, the master being required to permit him to
navigate it, if the master observes that the pilot is incompetent or physically incapable, then it is the
dury of the master to refuse to permit the pilot to act. But if no such reasons are present, then the
master is justified in relying upon the pilot, but not blindly. Under the circumstances of this case, if
a situation arose where the master, exercising that reasonable vigilance which the master of a ship
should exercise, observed, or should have observed, that the pilot was so navigating the vessel that
she was going, or was likely to go, into danger, and there was in the exercise of reasonable care and
vigilance an opportunity for the master to intervene so as to save the ship from danger, the master
should have acted accordingly. 83 The master of a vessel must exercise a degree of vigilance
commensurate with the circumstances. 84
Inasmuch as the matter of negligence is a question of fact, 85 we defer to the findings of the trial
court, especially as this is affirmed by the Court of Appeals. 86 But even beyond that, our own
evaluation is that Capt. Kabankov's shared liability is due mainly to the fact that he failed to act
when the perilous situation should have spurred him into quick and decisive action as master of the
ship. In the face of imminent or actual danger, he did not have to wait for the happenstance to occur
before countermanding or overruling the pilot. By his own admission, Capt. Kabankov concurred
with Capt. Gavino's decisions, and this is precisely the reason why he decided not to countermand
any of the latter's orders. Inasmuch as both lower courts found Capt. Gavino negligent, by
expressing full agreement therewith Capt. Kabankov was just as negligent as Capt. Gavino.
In general, a pilot is personally liable for damages caused by his own negligence or default to the
owners of the vessel, and to third parties for damages sustained in a collision. Such negligence of
the pilot in the performance of duty constitutes a maritime tort. 87 At common law, a shipowner is
not liable for injuries inflicted exclusively by the negligence of a pilot accepted by a vessel
compulsorily. 88 The exemption from liability for such negligence shall apply if the pilot is actually
in charge and solely in fault. Since, a pilot is responsible only for his own personal negligence, he
cannot be held accountable for damages proximately caused by the default of others, 89 or, if there
be anything which concurred with the fault of the pilot in producing the accident, the vessel master
and owners are liable.
Since the colliding vessel is prima facie responsible, the burden of proof is upon the party claiming
benefit of the exemption from liability. It must be shown affirmatively that the pilot was at fault,
and that there was no fault on the part of the officers or crew, which might have been conducive to
the damage. The fact that the law compelled the master to take the pilot does not exonerate the
vessel from liability. The parties who suffer are entitled to have their remedy against the vessel that
occasioned the damage, and are not under necessity to look to the pilot from whom redress is not
always had for compensation. The owners of the vessel are responsible to the injured party for the
acts of the pilot, and they must be left to recover the amount as well as they can against him. It
cannot be maintained that the circumstance of having a pilot on board, and acting in conformity to
his directions operate as a discharge of responsibility of the owners. 90 Except insofar as their
liability is limited or exempted by statute, the vessel or her owner are liable for all damages caused
by the negligence or other wrongs of the owners or those in charge of the vessel. Where the pilot of
a vessel is not a compulsory one in the sense that the owner or master of the vessel are bound to
accept him, but is employed voluntarily, the owners of the vessel are, all the more, liable for his
negligent act. 91
In the United States, the owners of a vessel are not personally liable for the negligent acts of a
compulsory pilot, but by admiralty law, the fault or negligence of a compulsory pilot is imputable
to the vessel and it may be held liable therefor in rem. Where, however, by the provisions of the
statute the pilot is compulsory only in the sense that his fee must be paid, and is not in compulsory
charge of the vessel, there is no exemption from liability. Even though the pilot is compulsory, if
his negligence was not the sole cause of the injury, but the negligence of the master or crew
contributed thereto, the owners are liable. 92 But the liability of the ship in rem does not release the
pilot from the consequences of his own negligence. 93 The rationale for this rule is that the master
32
is not entirely absolved of responsibility with respect to navigation when a compulsory pilot is in
charge. 94
By way of validation and in light of the aforecited guidepost rulings in American maritime cases,
we declare that our rulings during the early years of this century in City of Manila vs. Gambe, 95
China Navigation Co., Ltd. vs. Vidal, 96 and Yap Tica & Co. vs. Anderson, et al. 97 have
withstood the proverbial test of time and remain good and relevant case law to this day.
City of Manila stands for the doctrine that the pilot who was in command and complete control of a
vessel, and not the owners, must be held responsible for an accident which was solely the result of
the mistake of the pilot in not giving proper orders, and which did not result from the failure of the
owners to equip the vessel with the most modern and improved machinery. In China Navigation
Co., the pilot deviated from the ordinary and safe course, without heeding the warnings of the ship
captain. It was this careless deviation that caused the vessel to collide with a pinnacle rock which,
though uncharted, was known to pilots and local navigators. Obviously, the captain was blameless.
It was the negligence of the pilot alone which was the proximate cause of the collision. The Court
could not but then rule that —
The pilot in the case at bar having deviated from the usual and ordinary course followed by
navigators in passing through the strait in question, without a substantial reason, was guilty of
negligence, and that negligence having been the proximate cause of the damages, he is liable for
such damages as usually and naturally flow therefrom. . . .
. . . (T)he defendant should have known of the existence and location of the rock upon which the
vessel struck while under his control and management. . . . .
Consistent with the pronouncements in these two earlier cases, but on a slightly different tack, the
Court in Yap Tico & Co. exonerated the pilot from liability for the accident where the orders of the
pilot in the handling of the ship were disregarded by the officers and crew of the ship. According to
the Court, a pilot is ". . . responsible for a full knowledge of the channel and the navigation only so
far as he can accomplish it through the officers and crew of the ship, and I don't see chat he can be
held responsible for damage when the evidence shows, as it does in this case, that the officers and
crew of the ship failed to obey his orders." Nonetheless, it is possible for a compulsory pilot and the
master of the vessel to be concurrently negligent and thus share the blame for the resulting damage
as joint tortfeasors, 98 but only under the circumstances obtaining in and demonstrated by the
instant petitions.
It may be said, as a general rule, that negligence in order to render a person liable need not be the
sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient
causes other than piaintiff's, is the proximate cause of the injury. Accordingly, where several causes
combine to produce injuries, a person is not relieved from liability because he is responsible for
only one of them, it being sufficient that the negligence of the person charged with injury is an
efficient cause without which the injury would not have resulted to as great an extent, and that such
cause is not attributable to the person injured. It is no defense to one of the concurrent tortfeasors
that the injury would not have resulted from his negligence alone, without the negligence or
wrongful acts of the other concurrent rortfeasor. 99 Where several causes producing an injury are
concurrent and each is an efficient cause without which the injury would not have happened, the
injury may be attributed to all or any of the causes and recovery may be had against any or all of the
responsible persons although under the circumstances of the case, it may appear that one of them
was more culpable, and that the duty owed by them to the injured person was not the same. No
actor's negligence ceases to be a proximate cause merely because it does not exceed the negligence
of other actors. Each wrongdoer is responsible for the entire result and is liable as though his acts
were the sole cause of the injury. 100
There is no contribution between joint tortfeasors whose liability is solidary since both of them are
liable for the total damage. Where the concurrent or successive negligent acts or omissions of two
or more persons, although acting independently, are in combination the direct and proximate cause
of a single injury to a third person, it is impossible to determine in what proportion each contributed
to the injury and either of them is responsible for the whole injury. Where their concurring
negligence resulted in injury or damage to a third party, they become joint tortfeasors and are
solidarily liable for the resulting damage under Article 2194 101 of the Civil Code. 102
As for the amount of damages awarded by the trial court, we find the same to be reasonable. The
testimony of Mr. Pascual Barral, witness for PPA, on cross and redirect examination, appears to be
grounded on practical considerations:
Q So that the cost of the two additional piles as well as the (two) square meters is already
included in this P1,300,999.77.
A Yes sir, everything. It is (the) final cost already.
Q For the eight piles.
A Including the reduced areas and other reductions.
Q (A)nd the two square meters.
A Yes sir.
Q In other words, this P1,300,999.77 does not represent only for the six piles that was
damaged as well as the corresponding two piles.
A The area was corresponding, was increased by almost two in the actual payment. That
was why the contract was decreased, the real amount was P1,124,627.40 and the final one is
P1,300,999.77.
Q Yes, but that P1,300,999.77 included the additional two new posts.
A It was increased.
Q Why was it increased?
A The original was 48 and the actual was 46.
Q Now, the damage was somewhere in 1980. It took place in 1980 and you started the
repair and reconstruction in 1982, that took almost two years?
33

A Yes sir.
Q May it not happen that by natural factors, the existing damage in 1980 was aggravated for
the 2 year period that the damage portion was not repaired?
A I don't think so because that area was at once marked and no vehicles can park, it was
closed.
Q Even if or even natural elements cannot affect the damage?
A Cannot, sir.
xxx xxx xxx
Q You said in the cross-examination that there were six piles damaged by the accident, but
that in the reconstruction of the pier, PPA drove and constructed 8 piles. Will you explain to us why
there was change in the number of piles from the original number?
A In piers where the piles are withdrawn or pulled out, you cannot re-drive or drive piles at
the same point. You have to redesign the driving of the piles. We cannot drive the piles at the same
point where the piles are broken or damaged or pulled out. We have to redesign, and you will note
that in the reconstruction, we redesigned such that it necessitated 8 plies.
Q Why not, why could you not drive the same number of piles and on the same spot?
A The original location was already disturbed. We cannot get required bearing capacity.
The area is already disturbed.
Q Nonetheless, if you drove the original number of piles, six, on different places, would not
that have sustained the same load?
A It will not suffice, sir. 103
We quote the findings of the lower court with approval.
With regards to the amount of damages that is to be awarded to plaintiff, the Court finds that the
amount of P1,053,300.00 is justified. Firstly, the doctrine of res ipsa loquitur best expounded upon
in the landmark case of Republic vs. Luzon Stevedoring Corp. (21 SCRA 279) establishes the
presumption that in the ordinary course of events the ramming of the dock would not have occurred
if proper care was used.
Secondly, the various estimates and plans justify the cost of the port construction price. The new
structure constructed not only replaced the damaged one but was built of stronger materials to
forestall the possibility of any similar accidents in the future.
The Court inevitably finds that the plaintiff is entitled to an award of P1,053,300.00 which
represents actual damages caused by the damage to Berth 4 of the Manila International Port. Co-
defendants Far Eastern Shipping, Capt. Senen Gavino and Manila Pilots Association are solidariiy
liable to pay this amount to plaintiff. 104
The Solicitor General rightly commented that the adjudicated amount of damages represents the
proportional cost of repair and rehabilitation of the damaged section of the pier. 105
Except insofar as their liability is limited or exempted by statute, the vessel or her owners are liable
for all damages caused by the negligence or other wrongs of the owners or those in charge of the
vessel. As a general rule, the owners or those in possession and control of a vessel and the vessel
are liable for all natural and proximate damages caused to persons or property by reason of her
negligent management or navigation. 106
FESC's imputation of PPA's failure to provide a safe and reliable berthing place is obtuse, not only
because it appears to be a mere afterthought, being tardily raised only in this petition, but also
because there is no allegation or evidence on record about Berth No. 4 being unsafe and unreliable,
although perhaps it is a modest pier by international standards. There was, therefore, no error on the
part of the Court of Appeals in dismissing FESC's counterclaim.
II. G.R. No. 130150
This consolidated case treats on whether the Court of Appeals erred in holding MPA jointly and
solidarily liable with its member pilot. Capt. Gavino, in the absence of employer-employee
relationship and in applying Customs Administrative Order No. 15-65, as basis for the adjudged
solidary liability of MPA and Capt. Gavino.
The pertinent provisions in Chapter I of Customs Administrative Order No. 15-65 are:
PAR. XXVII. — In all pilotage districts where pilotage is compulsory, there shall be created and
maintained by the pilots or pilots' association, in the manner hereinafter prescribed, a reserve fund
equal to P1,000.00 for each pilot thereof for the purpose of paying claims for damages to vessels or
property caused through acts or omissions of its members while rendered in compulsory pilotage
service. In Manila, the reserve fund shall be P2,000.00 for each pilot.
PAR. XXVIII. — A pilots' association shall not be liable under these regulations for damage to any
vessel, or other property, resulting from acts of a member of an association in the actual
performance of his duty for a greater amount than seventy-five per centum (75%) of its prescribed
reserve fund; it being understood that if the association is held liable for an amount greater than the
amount above-stated, the excess shall be paid by the personal funds of the member concerned.
PAR. XXXI. — If a payment is made from the reserve fund of an association on account of
damages caused by a member thereof, and he shall have been found at fault, such member shall
reimburse the association in the amount so paid as soon as practicable; and for this purpose, not less
than twenty-five per centum of his dividends shall be retained each month until the full amount has
been returned to the reserve fund.
PAR. XXXIV. — Nothing in these regulations shall relieve any pilots' association or members
thereof, individually or collectively, from civil responsibility for damages to life or property
resulting from the acts of members in the performance of their duties.
34

Correlatively, the relevant provisions of PPA Administrative Order No. 03-85, which timery
amended this applicable maritime regulation, state:
Art. IV
Sec. 17. Pilots' Association — The Pilots in a Pilotage District shall organize themselves into a
Pilots' Association or firm, the members of which shall promulgate their own By-Laws not in
conflict with the rules and regulations promulgated by the Authority. These By-Laws shall be
submitted not later than one (1) month after the organization of the Pilots' Association for approval
by the General Manager of the Authority. Subsequent amendments thereto shall likewise be
submitted for approval.
Sec. 25. Indemnity Insurance and Reserve Fund —
a) Each Pilots' Association shall collectively insure its membership at the rate of P50,000.00
each member to cover in whole or in part any liability arising from any accident resulting in
damage to vessel(s), port facilities and other properties and/or injury to persons or death which any
member may have caused in the course of his performance of pilotage duties. . . . .
b) The Pilotage Association shall likewise set up and maintain a reserve fund which shall
answer for any part of the liability referred to in the immediately preceding paragraph which is left
unsatisfied by the insurance proceeds, in the following manner:
1) Each pilot in the Association shall contribute from his own account an amount of
P4,000.00 (P6,000.00 in the Manila Pilotage District) to the reserve fund. This fund shall not be
considered part of the capital of the Association nor charged as an expense thereof.
2) Seventy-five percent (75 %) of the reserve fund shall be set aside for use in the payment
of damages referred to above incurred in the actual performance of pilots' duties and the excess
shall be paid from the personal funds of the member concerned.
xxx xxx xxx
5) If payment is made from the reserve fund of an Association on account of damage caused
by a member thereof who is found at fault, he shall reimburse the Association in the amount so paid
as soon as practicable; and for this purpose, not less than twenty-five percentum (25 %) of his
dividend shall be retained each month until the full amount has been returned to the reserve fund.
Thereafter, the pilot involved shall be entitled to his full dividend.
6) When the reimbursement has been completed as prescribed in the preceding paragraph,
the ten percentum (10%) and the interest withheld from the shares of the other pilots in accordance
with paragraph (4) hereof shall be returned to them.
c) Liability of Pilots' Association — Nothing in these regulations shall relieve any Pilots'
Association or members thereof, individually or collectively, from any civil, administrative and/or
criminal responsibility for damages to life or property resulting from the individual acts of its
members as well as those of the Association's employees and crew in the performance of their
duties.
The Court of Appeals, while affirming the trial court's finding of solidary liability on the part of
FESC, MPA and Capt. Gavino, correctly based MPA' s liability not on the concept of employer-
employee relationship between Capt. Gavino and itself, but on the provisions of Customs
Administrative Order No. 15-65:
The Appellant MPA avers that, contrary to the findings and disquisitions of the Court a quo, the
Appellant Gavino was not and has never been an employee of the MPA but was only a member
thereof. The Court a quo, it is noteworthy, did not state the factual basis on which it anchored its
finding that Gavino was the employee of MPA. We are in accord with MPA's pose. Case law
teaches Us that, for an employer-employee relationship to exist, the confluence of the following
elements must be established: (1) selection and engagement of employees; (2) the payment of
wages; (3) the power of dismissal; (4) the employer's power to control the employees with respect
to the means and method by which the work is to be performed (Ruga versus NLRC, 181 SCRA
266).
xxx xxx xxx
The liability of MPA for damages is not anchored on Article 2180 of the New Civil Code as
erroneously found and declared by the Court a quo but under the provisions of Customs
Administrative Order No. 15-65, supra, in tandem with the by-laws of the MPA. 107
There being no employer-employee relationship, clearly Article 2180 108 of the Civil Code is
inapplicable since there is no vicarious liability of an employer to speak of. It is so stated in
American law, as follows:
The well established rule is that pilot associations are immune to vicarious liability for the tort of
their members. They are not the employer of their members and exercise no control over them once
they take the helm of the vessel. They are also not partnerships because the members do not
function as agents for the association or for each other. Pilots' associations are also not liable for
negligently assuring the competence of their members because as professional associations they
made no guarantee of the professional conduct of their members to the general public. 109
Where under local statutes and regulations, pilot associations lack the necessary legal incidents of
responsibility, they have been held not liable for damages caused by the default of a member pilot.
110 Whether or not the members of a pilots' association are in legal effect a copartnership depends
wholly on the powers and duties of the members in relation to one another under the provisions of
the governing statutes and regulations. The relation of a pilot to his association is not that of a
servant to the master, but of an associate assisting and participating in a common purpose.
Ultimately, the rights and liabilities between a pilots' association and an individual member depend
largely upon the constitution, articles or by-laws of the association, subject to appropriate
government regulations. 111
No reliance can be placed by MPA on the cited American rulings as to immunity from liability of a
pilots' association in ljght of existing positive regulation under Philippine law. The Court of
Appeals properly applied the clear and unequivocal provisions of Customs Administrative Order
35
No. 15-65. In doing so, it was just being consistent with its finding of the non-existence of ADMONISHED and WARNED that a repetition of the same or similar acts of unduly delaying
employer-employee relationship between MPA and Capt. Gavino which precludes the application proceedings due to delayed filing of required pleadings shall also be dealt with more stringently.
of Article 2180 of the Civil Code.
The Solicitor Genral is DIRECTED to look into the circumstances of this case and to adopt
True. Customs Administrative Order No. 15-65 does not categorically characterize or label MPA's provident measures to avoid a repetition of this incident and which would ensure prompt
liability as solidary in nature. Nevertheless, a careful reading and proper analysis of the correlated compliance with orders of this Court regarding the timely filing of requisite pleadings, in the
provisions lead to the conclusion that MPA is solidarily liable for the negligence of its member interest of just, speedy and orderly administration of justice.
pilots, without prejudice to subsequent reimbursement from the pilot at fault.
Let copies of this decision be spread upon the personal records of the lawyers named herein in the
Art. 1207 of the Civil Code provides that there is solidary liability only when the obligation Office of the Bar Confidant.
expressly so states, or when the law or the nature of the obligation requires solidarity. Plainly,
Customs Administrative Order No. 15-65, which as an implementing rule has the force and effect SO ORDERED.
of law, can validly provide for solidary liability.We note the Solicitor General's comment hereon, to
wit: Republic of the Philippines
Supreme Court
. . . Customs Administrative Order No. 15-65 may be a mere rule and regulation issued by an Manila
administrative agency pursuant to a delegated authority to fix "the details" in the execution or
enforcement of a policy set out in the law itself. Nonetheless, said administrative order, which adds THIRD DIVISION
to the procedural or enforcing provisions of substantive law, is legally binding and receives the
same statutory force upon going into effect. In that sense, it has equal, not lower, statutory force and
effect as a regular statute passed by the legislature. 112 DY TEBAN TRADING, INC., G.R. No. 161803
Petitioner,
MPA's prayer for modification of the appellate court's decision under review by exculpating Present:
petitioner MPA "from liability beyond seventy-five percent (75 %) of Reserve Fund" is YNARES-SANTIAGO, J.,
unnecessary because the liability of MPA under Par. XXVIII of Customs Administrative Order No. Chairperson,
15-65 is in fact limited to seventy-five percent (75 %) of its prescribed reserve fund, any amount of - versus - AUSTRIA-MARTINEZ,
liability beyond that being for the personal account of the erring pilot and subject to reimbursement CORONA,*
in case of a finding of fault by the member concerned. This is clarified by the Solicitor General: NACHURA, and
REYES, JJ.
Moreover, contrary to petitioner's pretensions, the provisions of Customs Administrative Order No.
15-65 do not limit the liability of petitioner as a pilots' association to an absurdly small amount of JOSE CHING AND/OR LIBERTY
seventy-five per centum (75 %) of the member pilots' contribution of P2,000.00 to the reserve fund. FOREST, INC. and CRESILITO Promulgated:
The law speaks of the entire reserve fund required to be maintained by the pilots' association to M. LIMBAGA,
answer (for) whatever liability arising from the tortious act of its members. And even if the Respondents. February 4, 2008
association is held liable for an amount greater than the reserve fund, the association may not resist x--------------------------------------------------x
the liability by claiming to be liable only up to seventy-five per centum (75 %) of the reserve fund DECISION
because in such instance it has the right to be reimbursed by the offending member pilot for the
excess. 113
REYES, R.T., J.:
WHEREFORE, in view of all of the foregoing, the consolidated petitions for review are DENIED
and the assailed decision of the Court of Appeals is AFFIRMED in toto.
THE vehicular collision resulting in damages and injuries in this case could have been avoided if
Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically its associate, Atty. the stalled prime mover with trailer were parked properly and equipped with an early warning
Herbert A. Tria, is REPRIMANDED and WARNED that a repetition of the same or similar acts of device. It is high time We sounded the call for strict enforcement of the law and regulation on
heedless disregard of its undertakings under the Rules shall be dealt with more severely. traffic and vehicle registration. Panahon na para mahigpit na ipatupad ang batas at regulasyon sa
trapiko at pagpapatala ng sasakyan.
The original members of the legal team of the Office of the Solicitor General assigned to this case,
namely, Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F. Simon, are

36
Before Us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA)
modifying that[2] of the Regional Trial Court (RTC) in
Butuan City finding private respondents Liberty Forest, Inc. and Cresilito Limbaga liable to
petitioner Dy Teban Trading, Inc. for damages.
Facts
On July 4, 1995, at around 4:45 a.m., Rogelio Ortiz, with helper Romeo Catamora, was driving a
Nissan van owned by petitioner Dy Teban Trading, Inc. along the National Highway in Barangay
Sumilihon, Butuan City, going to Surigao City. They were delivering commercial ice to nearby
barangays and municipalities. A Joana Paula passenger bus was cruising on the opposite lane
towards the van. In between the two vehicles was a parked prime mover with a trailer, owned by
private respondent Liberty Forest, Inc.[3]
The night before, at around 10:00 p.m., the prime mover with trailer suffered a tire blowout. The
driver, private respondent Cresilito Limbaga, parked the prime mover askew occupying a
substantial portion of the national highway, on the lane of the passenger bus. He parked the prime
mover with trailer at the shoulder of the road with the left wheels still on the cemented highway and
the right wheels on the sand and gravel shoulder of the highway.[4] The prime mover was not
equipped with triangular, collapsible reflectorized plates, the early warning device required under
Letter of Instruction No. 229. As substitute, Limbaga placed a banana trunk with leaves on the front
and the rear portion of the prime mover to warn incoming motorists. It is alleged that Limbaga
likewise placed kerosene lighted tin cans on the front and rear of the trailer.[5]
To avoid hitting the parked prime mover occupying its lane, the incoming passenger bus swerved to
the right, onto the lane of the approaching Nissan van. Ortiz saw two bright and glaring headlights
and the approaching passenger bus. He pumped his break slowly, swerved to the left to avoid the
oncoming bus but the van hit the front of the stationary prime mover. The passenger bus hit the rear
of the prime mover.[6]
Ortiz and Catamora only suffered minor injuries. The Nissan van, however, became inoperable as a
result of the incident. After the collision, SPO4 Teofilo Pame conducted an investigation and
submitted a police traffic incident investigation report.[7]
On October 31, 1995, petitioner Nissan van owner filed a complaint for damages[8] against private
respondents prime mover owner and driver with the RTC in Butuan City. The Joana Paula
passenger bus was not impleaded as defendant in the complaint.
RTC Disposition
On August 7, 2001, the RTC rendered a decision in favor of petitioner Dy Teban Trading, Inc. with
a fallo reading:
WHEREFORE, judgment is hereby rendered directing, ordaining and ordering:
a) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga pay, jointly and solidarily,
plaintiff Dy Teban Trading, Inc. the amounts of P279,832.00 as actual and compensatory damages,
P30,000.00 as attorneys fees and P5,000.00 as expenses of litigation;
b) That all money claims of plaintiff Rogelio C. Ortiz are dismissed;
c) That defendant Jose Ching is absolved from any civil liability or the case against him dismissed;
d) That the counterclaim of all the defendants is dismissed; and
e) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga to pay, jointly and solidarily, the
costs.
SO ORDERED.[9]
The RTC held that the proximate cause of the three-way vehicular collision was improper parking
of the prime mover on the national highway and the absence of an early warning device on the
vehicle, thus:
The court finds that the proximate cause of the incidents is the negligence and carelessness
attributable to the defendants. When the trailer being pulled by the prime mover suffered two (2)
flat tires at Sumilihon, the prime mover and trailer were parked haphazardly, as the right tires of the
prime mover were the only ones on the sand and gravel shoulder of the highway while the left tires
and all the tires of the trailer were on the cemented pavement of the highway, occupying almost the
whole of the right lane on the direction the prime mover and trailer were traveling. The statement of
Limbaga that he could not park the prime mover and trailer deeper into the sand and gravel
shoulder of the highway to his right because there were banana plants is contradicted by the picture
marked Exhibit F. The picture shows that there was ample space on the shoulder. If defendant
Limbaga was careful and prudent enough, he should have the prime mover and trailer traveled more
distance forward so that the bodies of the prime mover and trailer would be far more on the
shoulder rather than on the cemented highway when they were parked. x x x The court has some
doubts on the statement of witness-driver Limbaga that there were banana trunks with leaves and
lighted tin cans with crude oil placed 3 strides in front of the prime mover and behind the trailer
because the testimonies of witnesses Rogelio C. Ortiz, driver of the ice van, Romeo D. Catamora,
helper of the ice van, and Police Traffic Investigator SPO3 Teofilo M. Pame show that there were
no banana trunks with leaves and lighted tin cans at the scene of the incident. But even assuming
that there were banana trunks with leaves but they were placed close to the prime mover and trailer
as they were placed 3 strides away which to the mind of the court is equivalent approximately to 3
meters and with this distance, approaching vehicles would have no sufficient time and space to
make a complete stop, especially if the vehicles are heavy and loaded. If there were lighted tin cans,
it was not explained by the defendants why the driver, especially driver witness Ortiz, did not see
them.
xxxx
Defendant Liberty Forest, Inc. did not exercise the diligence of a good father of a family in
managing and running its business. The evidence on record shows that it failed to provide its prime
mover and trailer with the required early warning devices with reflectors and it did not keep proper
maintenance and condition of the prime mover and the trailer. The circumstances show that the
trailer were provided with wornout tires and with only one (1) piece of spare tire. The pictures
marked Exhibit 3 and 4 show that two (2) flat tires suffered by the trailer and these two (2) tires
were attached to one of the two (2) I-beams or axles attached to the rear of the trailer which axle is
very near but behind the other axle and with the location of the 2 I-beams, it would have the other I-
beam that would have suffered the flat tires as it has to bear the brunt of weight of the D-8
37
bulldozer. The bulldozer was not loaded directly above the two (2) I-beams as 2 I-beams, as a pair,
were attached at the far rear end of the trailer.
xxxx
However, defendant Jose Ching should be absolved of any liability as there is no showing that he is
the manager or CEO of defendant Liberty Forest, Inc. Although in the answer, it is admitted that he
is an officer of the defendant corporation, but it is not clarified what kind of position he is holding,
as he could be an officer as one of the members of the Board of Directors or a cashier and treasurer
of the corporation. Witness Limbaga in his testimony mentioned a certain Boy Ching as the
Manager but it was never clarified whether or not Boy Ching and defendant Jose Ching is one and
the same person.[10]
Private respondents appealed to the CA.
CA Disposition
On August 28, 2003, the CA reversed the RTC decision, disposing as follows:
WHEREFORE, premises considered, the decision dated August 7, 2001 of the Regional Trial
Court, Branch 2, Butuan City in Civil Case No. 4360 is hereby PARTLY MODIFIED by absolving
the defendants-appellants/appellees of any liability to plaintiffs-appellants/appellees by reason of
the incident on July 4, 1995.
The dismissal of the case against Jose Ching, the counterclaim of defendants-appellants/appellees
and the money claim of Rogelio Ortiz STANDS.
SO ORDERED.[11]
In partly reversing or partly modifying the RTC decision, the CA held that the proximate cause of
the vehicular collision was the failure of the Nissan van to give way or yield to the right of way of
the passenger bus, thus:
It was stated that the Joana Paula bus in trying to avoid a head-on collision with the truck,
sideswept the parked trailer loaded with bulldozer.
Evidently, the driver of the Joana Paula bus was aware of the presence on its lane of the parked
trailer with bulldozer. For this reason, it proceeded to occupy what was left of its lane and part of
the opposite lane. The truck occupying the opposite lane failed to give way or yield the right of way
to the oncoming bus by proceeding with the same speed. The two vehicles were, in effect, trying to
beat each other in occupying a single lane. The bus was the first to occupy the said lane but upon
realizing that the truck refused to give way or yield the right of way, the bus, as a precaution,
geared to its right where the trailer was parked. Unfortunately, the bus miscalculated its distance
from the parked trailer and its rear right side hit the protruding blade of the bulldozer then on the
top of the parked trailer. The impact of the collision on its right rear side with the blade of the
bulldozer threw the bus further to the opposite lane, landing its rear portion on the shoulder of the
opposite lane.
xxxx
Facts of the case reveal that when Ortiz, the driver of the truck, failed to give the Joana Paula bus
the space on the road it needed, the latter vehicle scraped its rear right side on the protruded
bulldozer blade and the impact threw the bus directly on the path of the oncoming truck. This made
plaintiffs-appellants/appellees conclude that the Joana Paula bus occupied its lane which forced
Ortiz, the driver of the truck, to swerve to its left and ram the front of the parked trailer.
xxxx
The trailer was parked because its two (2) rear-left tires were blown out. With a bulldozer on top of
the trailer and two (2) busted tires, it would be dangerous and quite impossible for the trailer to
further park on the graveled shoulder of the road. To do so will cause the flat car to tilt and may
cause the bulldozer to fall from where it was mounted. In fact, it appeared that the driver of the
trailer tried its best to park on the graveled shoulder since the right-front tires were on the graveled
shoulder of the road.
The lower court erred in stating that the Joana Paula bus swerved to the left of the truck because it
did not see the parked trailer due to lack of warning sign of danger of any kind that can be seen
from a distance. The damage suffered by the Joana Paula bus belied this assessment. As stated
before, the Joana Paula bus, with the intention of passing first which it did, first approached the
space beside the parked trailer, veered too close to the parked trailer thereby hitting its rear right
side on the protruding bulldozer blade. Since the damage was on the rear right most of the bus, it
was clearly on the space which was wide enough for a single passing vehicle but not sufficient for
two (2) passing vehicles. The bus was thrown right to the path of the truck by the impact of the
collision of its rear right side with the bulldozer blade.[12]
The CA disagreed with the RTC that the prime mover did not have an early warning device. The
appellate court accepted the claim of private respondent that Limbaga placed kerosene lighted tin
cans on the front and rear of the trailer which, in Baliwag Transit, Inc. v. Court of Appeals,[13] may
act as substitute early warning device. The CA stated:
Likewise, it was incorrect for the lower court to state that there was no warning sign of danger of
any kind, most probably referring to the absence of the triangular reflectorized plates. The police
sketch clearly indicated the stack of banana leaves placed at the rear of the parked trailer. The
trailers driver testified that they placed kerosene lighted tin can at the back of the parked trailer.
A pair of triangular reflectorized plates is not the only early warning device allowed by law. The
Supreme Court (in Baliwag Transit, Inc. v. Court of Appeals) held that:
x x x Col. Dela Cruz and Romano testified that they did not see any early warning device at the
scene of the accident. They were referring to the triangular reflectorized plates in red and yellow
issued by the Land Transportation Office. However, the evidence shows that Recontique and Ecala
placed a kerosene lamp or torch at the edge of the road, near the rear portion of the truck to serve as
an early warning device. This substantially complies with Section 34(g) of the Land Transportation
and Traffic Code x x x
38
Baliwags argument that the kerosene lamp or torch does not substantially comply with the law is
untenable. The aforequoted law clearly allows the use not only of an early warning device of the
triangular reflectorized plates variety but also parking lights or flares visible one hundred meters
away. x x x.
This Court holds that the defendants-appellants/appellees were not negligent in parking the trailer
on the scene of the accident. It would have been different if there was only one flat tire and
defendant-appellant/appellee Limbaga failed to change the same and left immediately.
As such, defendants-appellants/appellees are not liable for the damages suffered by plaintiffs-
appellants/appellees. Whatever damage plaintiffs-appellants/appellees suffered, they alone must
bear them.[14]
Issues
Petitioner raises two issues[15] for Our consideration, to wit:
I.
THE HONORABLE COURT OF APPEALS, WITHOUT ANY AVAILABLE CONCRETE
EVIDENCE, ERRONEOUSLY DETERMINED THAT THERE WERE EARLY WARNING
DEVICES PLACED IN FRONT OF THE DEFENDANT-APPELLANTS/APPELLEES TRUCK
AND FLAT CAR TO WARN PLAINTIFF-APPELLANT/APPELLEE ROGELIO ORTIZ OF
THEIR PRESENCE.
II.
WITH DUE RESPECT, IT IS HIGH TIME TO ENFORCE THE LAW ON EARLY WARNING
DEVICES IN THE PUBLIC INTEREST.
Our Ruling
The petition is meritorious.
The meat of the petition is whether or not the prime mover is liable for the damages suffered by the
Nissan van. The RTC ruled in the affirmative holding that the proximate cause of the vehicular
collision was the negligence of Limbaga in parking the prime mover on the national highway
without an early warning device on the vehicle. The CA reversed the RTC decision, holding that
the proximate cause of the collision was the negligence of Ortiz in not yielding to the right of way
of the passenger bus.
Article 2176 of the Civil Code provides that whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between the parties, is called a quasi-delict. To sustain a
claim based on quasi-delict, the following requisites must concur: (a) damage suffered by plaintiff;
(b) fault or negligence of defendant; and (c) connection of cause and effect between the fault or
negligence of defendant and the damage incurred by plaintiff.[16]
There is no dispute that the Nissan van suffered damage. That is borne by the records and conceded
by the parties. The outstanding issues are negligence and proximate cause. Tersely put, the twin
issues are: (a) whether or not prime mover driver Limbaga was negligent in parking the vehicle;
and (b) whether or not his negligence was the proximate cause of the damage to the Nissan van.
Limbaga was negligent in parking the prime mover on the national highway; he failed to prevent or
minimize the risk to oncoming motorists.
Negligence is defined as the failure to observe for the protection of the interests of another person
that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such
other person suffers injury.[17] The Supreme Court stated the test of negligence in the landmark
case Picart v. Smith[18] as follows:
The test by which to determine the existence or negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution
which an ordinary person would have used in the same situation? If not, then he is guilty of
negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case
is not determined by reference to the personal judgment of the actor in the situation before him. The
law considers what would be reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that. (Underscoring supplied)
The test of negligence is objective. We measure the act or omission of the tortfeasor with that of an
ordinary reasonable person in the same situation. The test, as applied to this case, is whether
Limbaga, in parking the prime mover, used that reasonable care and caution which an ordinary
reasonable person would have used in the same situation.
We find that Limbaga was utterly negligent in parking the prime mover askew on the right side of
the national highway. The vehicle occupied a substantial portion of the national road on the lane of
the passenger bus. It was parked at the shoulder of the road with its left wheels still on the cemented
highway and the right wheels on the sand and gravel shoulder of the highway. It is common sense
that the skewed parking of the prime mover on the national road posed a serious risk to oncoming
motorists. It was incumbent upon Limbaga to take some measures to prevent that risk, or at least
minimize it.
We are unable to agree with the CA conclusion it would have been dangerous and quite impossible
to further park the prime mover on the graveled shoulder of the road because the prime mover may
tilt and the bulldozer may fall off. The photographs taken after the incident show that it could have
been possible for Limbaga to park the prime mover completely on the shoulder of the national road
without risk to oncoming motorists. We agree with the RTC observation on this point, thus:
x x x The statement of Limbaga that he could not park the prime mover and trailer deeper into the
sand and gravel shoulder of the highway to his right because there were banana plants is
contradicted by the picture marked Exhibit F. The picture shows that there was ample space on the
shoulder. If defendant Limbaga was careful and prudent enough, he should have the prime mover
and trailer traveled more distance forward so that the bodies of the prime mover and trailer would
be far more on the shoulder rather than on the cemented highway when they were parked. Although
39
at the time of the incident, it was about 4:45 in the morning and it was drizzling but there is
showing that it was pitch dark that whoever travels along the highway must be extra careful. If the
Joana Paula bus swerved to the lane on which the Nissan ice van was properly traveling, as
prescribed by Traffic Rules and Regulations, it is because the driver of the bus did not see at a
distance the parked prime mover and trailer on the bus proper lane because there was no warning
signs of danger of any kind that can be seen from a distance.[19]
Limbaga also failed to take proper steps to minimize the risk posed by the improperly parked prime
mover. He did not immediately inform his employer, private respondent Liberty Forest, Inc., that
the prime mover suffered two tire blowouts and that he could not have them fixed because he had
only one spare tire. Instead of calling for help, Limbaga took it upon himself to simply place banana
leaves on the front and rear of the prime mover to serve as warning to oncoming motorists. Worse,
Limbaga slept on the prime mover instead of standing guard beside the vehicle. By his own
account, Limbaga was sleeping on the prime mover at the time of the collision and that he was only
awakened by the impact of the Nissan van and the passenger bus on the prime mover.[20]
Limbaga also admitted on cross-examination that it was his first time to drive the prime mover with
trailer loaded with a D-8 caterpillar bulldozer.[21] We find that private respondent Liberty Forest,
Inc. was utterly negligent in allowing a novice driver, like Limbaga, to operate a vehicle, such as a
truck loaded with a bulldozer, which required highly specialized driving skills. Respondent
employer clearly failed to properly supervise Limbaga in driving the prime mover.
The RTC noted that private respondent Liberty Forest, Inc. also failed to keep the prime mover in
proper condition at the time of the collision. The prime mover had worn out tires. It was only
equipped with one spare tire. It was for this reason that Limbaga was unable to change the two
blown out tires because he had only one spare. The bulldozer was not even loaded properly on the
prime mover, which caused the tire blowouts.
All told, We agree with the RTC that private respondent Limbaga was negligent in parking the
prime mover on the national highway. Private respondent Liberty Forest, Inc. was also negligent in
failing to supervise Limbaga and in ensuring that the prime mover was in proper condition.
The case of Baliwag Transit, Inc. v. Court of Appeals is inapplicable; Limbaga did not put lighted
kerosene tin cans on the front and rear of the prime mover.
Anent the absence of an early warning device on the prime mover, the CA erred in accepting the
bare testimony of Limbaga that he placed kerosene lighted tin cans on the front and rear of the
prime mover. The evidence on records belies such claim. The CA reliance on Baliwag Transit, Inc.
v. Court of Appeals[22] as authority for the proposition that kerosene lighted tin cans may act as
substitute early warning device is misplaced.
First, the traffic incident report did not mention any lighted tin cans on the prime mover or within
the immediate vicinity of the accident. Only banana leaves were placed on the prime mover. The
report reads:
VIII RESULT OF INVESTIGATION: A Joana Paula Bus, with Body No. 7788, with Plate No.
LVA-137, driven by one Temestocles Relova v. Antero, of legal age, married and a resident of San
Roque, Kitcharao, Agusan del Norte, while traveling along the National Highway, coming from the
east going to the west direction, as it moves along the way and upon reaching Brgy. Sumilihon,
Butuan City to evade bumping to the approaching Nissan Ice Van with Plate No. PNT-247, driven
by one Rogelio Cortez y Ceneza. As the result, the Joana Paula Bus accidentally busideswept (sic)
to the parked Prime Mover with Trailer loaded with Bulldozer without early warning device,
instead placing only dry banana leaves three (3) meters at the rear portion of the Trailer, while
failure to place at the front portion, and the said vehicle occupied the whole lane. As the result, the
Joana Paula Bus hit to the left edge blade of the Bulldozer. Thus, causing the said bus swept to the
narrow shouldering, removing the rear four (4) wheels including the differential and injuring the
above-stated twelve (12) passengers and damaged to the right side fender above the rear wheel.
Thus, causing damage on it. While the Nissan Ice Van in evading, accidentally swerved to the left
lane and accidentally bumped to the front bumper of the parked Prime Mover with Trailer loaded
with Bulldozer. Thus, causing heavy damage to said Nissan Ice Van including the cargoes of the
said van.[23]
Second, SPO4 Pame, who investigated the collision, testified[24] that only banana leaves were
placed on the front and rear of the prime mover. He did not see any lighted tin cans in the
immediate vicinity of the collision.
Third, the claim of Limbaga that he placed lighted tin cans on the front and rear of the prime mover
belatedly surfaced only during his direct examination. No allegation to this effect was made by
private respondents in their Answer to the complaint for damages. Petitioners counsel promptly
objected to the testimony of Limbaga, thus:
ATTY. ROSALES:
Q. Now you mentioned about placing some word signs in front and at the rear of the prime mover
with trailer, will you please describe to us what this word signs are?
A. We placed a piece of cloth on tin cans and filled them with crude oil. And these tin cans were
lighted and they are like torches. These two lights or torches were placed in front and at the rear
side of the prime mover with trailer. After each torch, we placed banana trunk. The banana trunk is
placed between the two (2) torches and the prime mover, both on the rear and on the front portion
of the prime mover.
Q. How far was the lighted tin cans with wick placed in front of the prime mover.
ATTY. ASIS:
At this point, we will be objecting to questions particularly referring to the alleged tin cans as some
of the warning-sign devices, considering that there is no allegation to that effect in the answer of the
defendants. The answer was just limited to the numbers 4 & 5 of the answer. And, therefore, if we
follow the rule of the binding effect of an allegation in the complaint, then the party will not be
allowed to introduce evidence to attack jointly or rather the same, paragraph 5 states, warning
device consisting of 3 banana trunks, banana items and leaves were filed. He can be cross-examined
in the point, Your Honor.
COURT:
Q. Put that on record that as far as this tin cans are concerned, the plaintiffs are interposing
continuing objections. But the Court will allow the question.[25]
40
We thus agree with the RTC that Limbaga did not place lighted tin cans on the front and rear of the
prime mover. We give more credence to the traffic incident report and the testimony of SPO4 Pame
that only banana leaves were placed on the vehicle. Baliwag Transit, Inc. v. Court of Appeals[26]
thus finds no application to the case at bar.
The skewed parking of the prime mover was the proximate cause of the collision.
Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by
any efficient intervening cause, produces the injury, and without which the result would not have
occurred. More comprehensively, proximate cause is that cause acting first and producing the
injury, either immediately or by setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection with its immediate predecessor,
the final event in the chain immediately effecting the injury as natural and probable result of the
cause which first acted, under such circumstances that the person responsible for the first event
should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might probably result therefrom.[27]
There is no exact mathematical formula to determine proximate cause. It is based upon mixed
considerations of logic, common sense, policy and precedent.[28] Plaintiff must, however, establish
a sufficient link between the act or omission and the damage or injury. That link must not be remote
or far-fetched; otherwise, no liability will attach. The damage or injury must be a natural and
probable result of the act or omission. In the precedent-setting Vda. de Bataclan v. Medina,[29] this
Court discussed the necessary link that must be established between the act or omission and the
damage or injury, viz.:
It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely
causing him physical injuries, if through some event, unexpected and extraordinary, the overturned
bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire,
and the passenger is burned to death, one might still contend that the proximate cause of his death
was the fire and not the overturning of the vehicle. But in the present case and under the
circumstances obtaining in the same, we do not hesitate to hold that the proximate cause of the
death of Bataclan was the overturning of the bus, this for the reason that when the vehicle turned
not only on its side but completely on its back, the leaking of the gasoline from the tank was not
unnatural or unexpected; that the coming of the men with a lighted torch was in response to the call
for help, made not only by the passengers, but most probably, by the driver and the conductor
themselves, and that because it was very dark (about 2:30 in the morning), the rescuers had to carry
a light with them; and coming as they did from a rural area where lanterns and flashlights were not
available, they had to use a torch, the most handy and available; and what was more natural than
that said rescuers should innocently approach the overturned vehicle to extend the aid and effect the
rescue requested from them. In other words, the coming of the men with the torch was to be
expected and was natural sequence of the overturning of the bus, the trapping of some of its
passengers bus, the trapping of some of its passengers and the call for outside help.
The ruling in Bataclan has been repeatedly cited in subsequent cases as authority for the proposition
that the damage or injury must be a natural or probable result of the act or omission. Here, We
agree with the RTC that the damage caused to the Nissan van was a natural and probable result of
the improper parking of the prime mover with trailer. As discussed, the skewed parking of the
prime mover posed a serious risk to oncoming motorists. Limbaga failed to prevent or minimize
that risk. The skewed parking of the prime mover triggered the series of events that led to the
collision, particularly the swerving of the passenger bus and the Nissan van.
Private respondents Liberty Forest, Inc. and Limbaga are liable for all damages that resulted from
the skewed parking of the prime mover. Their liability includes those damages resulting from
precautionary measures taken by other motorist in trying to avoid collision with the parked prime
mover. As We see it, the passenger bus swerved to the right, onto the lane
of the Nissan van, to avoid colliding with the improperly parked prime mover. The driver of the
Nissan van, Ortiz, reacted swiftly by swerving to the left, onto the lane of the passenger bus, hitting
the parked prime mover. Ortiz obviously would not have swerved if not for the passenger bus
abruptly occupying his vans lane. The passenger bus, in turn, would not have swerved to the lane of
the Nissan van if not for the prime mover improperly parked on its lane. The skewed parking is the
proximate cause of the damage to the Nissan van.
In Phoenix Construction, Inc. v. Intermediate Appellate Court,[30] this Court held that a similar
vehicular collision was caused by the skewed parking of a dump truck on the national road, thus:
The conclusion we draw from the factual circumstances outlined above is that private respondent
Dionisio was negligent the night of the accident. He was hurrying home that night and driving
faster than he should have been. Worse, he extinguished his headlights at or near the intersection of
General Lacuna and General Santos Streets and thus did not see the dump truck that was parked
askew and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that
the legal and proximate cause of the accident and of Dionisios 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 Carbonels negligence on the
one hand and the accident and respondents injuries on the other hand, is quite clear. Put in a slightly
different manner, the collision of Dionisios car with the dump truck was a natural and foreseeable
consequence of the truck drivers negligence.
xxxx
We believe, secondly, that the truck drivers 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 respondents car would in all probability not have occurred had the dump truck not been
parked askew without any warning lights or reflector devices. The improper parking of the dump
truck created an unreasonable risk of injury for anyone driving down General Lacuna Street and for
having so created this risk, the truck driver must be held responsible. In our view, Dionisios
negligence, although later in point of time than the truck drivers negligence and, therefore, closer to
the accident, was not an efficient intervening or independent cause. What the Petitioner describes as
an intervening cause was no more than a foreseeable consequence of the risk created by the
negligent manner in which the truck driver had parked the dump truck. In other words, the
petitioner truck driver owed a duty to private respondent Dionisio and others similarly situated not
to impose upon them the very risk the truck driver had created. Dionisios negligence was not of an
independent and overpowering nature as to cut, as it were, the chain of causation in fact between
41
the improper parking of the dump truck and the accident, nor to sever the juris vinculum of liability.
x x x (Underscoring supplied)
We cannot rule on the proportionate or contributory liability of the passenger bus, if any, because it
was not a party to the case; joint tortfeasors are solidarily liable.
The CA also faults the passenger bus for the vehicular collision. The appellate court noted that the
passenger bus was aware of the presence of the prime mover on its lane, but it still proceeded to
occupy the lane of the Nissan van. The passenger bus also miscalculated its distance from the prime
mover when it hit the vehicle.
We cannot definitively rule on the proportionate or contributory liability of the Joana Paula
passenger bus vis--vis the prime mover because it was not a party to the complaint for damages.
Due process dictates that the passenger bus must be given an opportunity to present its own version
of events before it can be held liable. Any contributory or proportionate liability of the passenger
bus must be litigated in a separate action, barring any defense of prescription or laches. Insofar as
petitioner is concerned, the proximate cause of the collision was the improper parking of the prime
mover. It was the improper parking of the prime mover which set in motion the series of events that
led to the vehicular collision.
Even granting that the passenger bus was at fault, its fault will not necessarily absolve private
respondents from liability. If at fault, the passenger bus will be a joint tortfeasor along with private
respondents. The liability of joint tortfeasors is joint and solidary. This means that petitioner may
hold either of them liable for damages from the collision. In Philippine National Construction
Corporation v. Court of Appeals,[31] this Court held:
According to the great weight of authority, where the concurrent or successive negligent acts or
omission of two or more persons, although acting independently of each other, are, in combination,
the direct and proximate cause of a single injury to a third person and it is impossible to determine
in what proportion each contributed to the injury, either is responsible for the whole injury, even
though his act alone might not have caused the entire injury, or the same damage might have
resulted from the acts of the other tort-feasor x x x.
In Far Eastern Shipping Company v. Court of Appeals, the Court declared that the liability of joint
tortfeasors is joint and solidary, to wit:
It may be said, as a general rule, that negligence in order to render a person liable need not be the
sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient
causes other than plaintiffs, is the proximate cause of the injury. Accordingly, where several causes
combine to produce injuries, a person is not relieved from liability because he is responsible for
only one of them, it being sufficient that the negligence of the person charged with injury is an
efficient cause without which the injury would not have resulted to as great an extent, and that such
cause is not attributable to the person injured. It is no defense to one of the concurrent tortfeasors
that the injury would not have resulted from his negligence alone, without the negligence or
wrongful acts of the other concurrent tortfeasors. Where several causes producing an injury are
concurrent and each is an efficient cause without which the injury would not have happened, the
injury may be attributed to all or any of the causes and recovery may be had against any or all of the
responsible persons although under the circumstances of the case, it may appear that one of them
was more culpable, and that the duty owed by them to the injured person was not the same. No
actors negligence ceases to be a proximate cause merely because it does not exceed the negligence
of other actors. Each wrongdoer is responsible for the entire result and is liable as though his acts
were the sole cause of the injury.
There is no contribution between joint tortfeasors whose liability is solidary since both of them are
liable for the total damage. Where the concurrent or successive negligent acts or omissions of two
or more persons, although acting independently, are in combination with the direct and proximate
cause of a single injury to a third person, it is impossible to determine in what proportion each
contributed to the injury and either of them is responsible for the whole injury. Where their
concurring negligence resulted in injury or damage to a third party, they become joint tortfeasors
and are solidarily liable for the resulting damage under Article 2194 of the Civil Code.
(Underscoring supplied)
All told, all the elements of quasi delict have been proven by clear and convincing evidence. The
CA erred in absolving private respondents from liability for the vehicular collision.
Final Note
It is lamentable that the vehicular collision in this case could have been easily avoided by following
basic traffic rules and regulations and road safety standards. In hindsight, private respondent
Limbaga could have prevented the three-way vehicular collision if he had properly parked the
prime mover on the shoulder of the national road. The improper parking of vehicles, most
especially along the national highways, poses a serious and unnecessary risk to the lives and limbs
of other motorists and passengers. Drivers owe a duty of care to follow basic traffic rules and
regulations and to observe road safety standards. They owe that duty not only for their own safety,
but also for that of other motorists. We can prevent most vehicular accidents by simply following
basic traffic rules and regulations.
We also note a failure of implementation of basic safety standards, particularly the law on early
warning devices. This applies even more to trucks and big vehicles, which are prone to mechanical
breakdown on the national highway. The law, as crafted, requires vehicles to be equipped with
triangular reflectorized plates.[32] Vehicles without the required early warning devices are
ineligible for registration.[33] Vehicle owners may also be arrested and fined for non-compliance
with the law.[34]
The Land Transportation Office (LTO) owes a duty to the public to ensure that all vehicles on the
road meet basic and minimum safety features, including that of early warning devices. It is most
unfortunate that We still see dilapidated and rundown vehicles on the road with substandard safety
features. These vehicles not only pose a hazard to the safety of their occupants but that of other
motorists. The prime mover truck in this case should not have been granted registration because it
failed to comply with the minimum safety features required for vehicles on the road.
42
It is, indeed, time for traffic enforcement agencies and the LTO to strictly enforce all pertinent laws
and regulations within their mandate. THE FACTS:

WHEREFORE, the petition is GRANTED. The Court of Appeals decision dated August 28, 2003
is hereby SET ASIDE. The RTC decision dated August 7, 2001 is REINSTATED IN FULL. On August 28, 2001, R&B Insurance issued Marine Policy No. MN-00105/2001 in favor of
Columbia to insure the shipment of 132 bundles of electric copper cathodes against All Risks. On
SO ORDERED. August 28, 2001, the cargoes were shipped on board the vessel Richard Rey from Isabela, Leyte, to
Pier 10, North Harbor, Manila. They arrived on the same date.
SECOND DIVISION
Columbia engaged the services of Glodel for the release and withdrawal of the cargoes from the
LOADMASTERS CUSTOMS SERVICES, INC., pier and the subsequent delivery to its warehouses/plants. Glodel, in turn, engaged the services of
Petitioner, Loadmasters for the use of its delivery trucks to transport the cargoes to Columbias
warehouses/plants in Bulacan and Valenzuela City.
- versus -
The goods were loaded on board twelve (12) trucks owned by Loadmasters, driven by its employed
GLODEL BROKERAGE CORPORATION and drivers and accompanied by its employed truck helpers. Six (6) truckloads of copper cathodes were
R&B INSURANCE CORPORATION, to be delivered to Balagtas, Bulacan, while the other six (6) truckloads were destined for Lawang
Respondents. Bato, Valenzuela City. The cargoes in six truckloads for Lawang Bato were duly delivered in
Columbias warehouses there. Of the six (6) trucks en route to Balagtas, Bulacan, however, only five
G.R. No. 179446 (5) reached the destination. One (1) truck, loaded with 11 bundles or 232 pieces of copper cathodes,
failed to deliver its cargo.
Present:
Later on, the said truck, an Isuzu with Plate No. NSD-117, was recovered but without the copper
CARPIO, J., Chairperson, cathodes. Because of this incident, Columbia filed with R&B Insurance a claim for insurance
NACHURA, indemnity in the amount of P1,903,335.39. After the requisite investigation and adjustment, R&B
PERALTA, Insurance paid Columbia the amount of P1,896,789.62 as insurance indemnity.
ABAD, and
MENDOZA, JJ. R&B Insurance, thereafter, filed a complaint for damages against both Loadmasters and Glodel
Promulgated: before the Regional Trial Court, Branch 14, Manila (RTC), docketed as Civil Case No. 02-103040.
It sought reimbursement of the amount it had paid to Columbia for the loss of the subject cargo. It
January 10, 2011 claimed that it had been subrogated to the right of the consignee to recover from the party/parties
who may be held legally liable for the loss.[2]
X -------------------------------------------------------------------------------------- X
On November 19, 2003, the RTC rendered a decision[3] holding Glodel liable for damages for the
DECISION loss of the subject cargo and dismissing Loadmasters counterclaim for damages and attorneys fees
against R&B Insurance. The dispositive portion of the decision reads:

MENDOZA, J.:
This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court assailing the
August 24, 2007 Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 82822, entitled
R&B Insurance Corporation v. Glodel Brokerage Corporation and Loadmasters Customs Services,
Inc., which held petitioner Loadmasters Customs Services, Inc. (Loadmasters) liable to respondent
Glodel Brokerage Corporation (Glodel) in the amount of P1,896,789.62 representing the insurance
indemnity which R&B Insurance Corporation (R&B Insurance) paid to the insured-consignee,
Columbia Wire and Cable Corporation (Columbia).
WHEREFORE, all premises considered, the plaintiff having established by preponderance of
evidence its claims against defendant Glodel Brokerage Corporation, judgment is hereby rendered
ordering the latter:
1. To pay plaintiff R&B Insurance Corporation the sum of P1,896,789.62 as actual and
compensatory damages, with interest from the date of complaint until fully paid;
2. To pay plaintiff R&B Insurance Corporation the amount equivalent to 10% of the principal
amount recovered as and for attorneys fees plus P1,500.00 per appearance in Court;

43
3. To pay plaintiff R&B Insurance Corporation the sum of P22,427.18 as litigation expenses.
WHEREAS, the defendant Loadmasters Customs Services, Inc.s counterclaim for damages and
attorneys fees against plaintiff are hereby dismissed.
With costs against defendant Glodel Brokerage Corporation.
SO ORDERED.[4]
Both R&B Insurance and Glodel appealed the RTC decision to the CA.
On August 24, 2007, the CA rendered the assailed decision which reads in part:
Considering that appellee is an agent of appellant Glodel, whatever liability the latter owes to
appellant R&B Insurance Corporation as insurance indemnity must likewise be the amount it shall
be paid by appellee Loadmasters.
WHEREFORE, the foregoing considered, the appeal is PARTLY GRANTED in that the appellee
Loadmasters is likewise held liable to appellant Glodel in the amount of P1,896,789.62 representing
the insurance indemnity appellant Glodel has been held liable to appellant R&B Insurance
Corporation.
Appellant Glodels appeal to absolve it from any liability is herein DISMISSED.
SO ORDERED.[5]
Hence, Loadmasters filed the present petition for review on certiorari before this Court presenting
the following
ISSUES
1. Can Petitioner Loadmasters be held liable to Respondent Glodel in spite of the fact that the latter
respondent Glodel did not file a cross-claim against it (Loadmasters)?
2. Under the set of facts established and undisputed in the case, can petitioner Loadmasters be
legally considered as an Agent of respondent Glodel?[6]
To totally exculpate itself from responsibility for the lost goods, Loadmasters argues that it cannot
be considered an agent of Glodel because it never represented the latter in its dealings with the
consignee. At any rate, it further contends that Glodel has no recourse against it for its (Glodels)
failure to file a cross-claim pursuant to Section 2, Rule 9 of the 1997 Rules of Civil Procedure.
Glodel, in its Comment,[7] counters that Loadmasters is liable to it under its cross-claim because
the latter was grossly negligent in the transportation of the subject cargo. With respect to
Loadmasters claim that it is already estopped from filing a cross-claim, Glodel insists that it can
still do so even for the first time on appeal because there is no rule that provides otherwise. Finally,
Glodel argues that its relationship with Loadmasters is that of Charter wherein the transporter
(Loadmasters) is only hired for the specific job of delivering the merchandise. Thus, the diligence
required in this case is merely ordinary diligence or that of a good father of the family, not the
extraordinary diligence required of common carriers.
R&B Insurance, for its part, claims that Glodel is deemed to have interposed a cross-claim against
Loadmasters because it was not prevented from presenting evidence to prove its position even
without amending its Answer. As to the relationship between Loadmasters and Glodel, it contends
that a contract of agency existed between the two corporations.[8]
Subrogation is the substitution of one person in the place of another with reference to a lawful claim
or right, so that he who is substituted succeeds to the rights of the other in relation to a debt or
claim, including its remedies or securities.[9] Doubtless, R&B Insurance is subrogated to the rights
of the insured to the extent of the amount it paid the consignee under the marine insurance, as
provided under Article 2207 of the Civil Code, which reads:
ART. 2207. If the 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 shall be subrogated to the rights of the insured against the wrong-doer or
the person who has violated the contract. If the amount paid by the insurance company does not
fully cover the injury or loss, the aggrieved party shall be entitled to recover the deficiency from the
person causing the loss or injury.
As subrogee of the rights and interest of the consignee, R&B Insurance has the right to seek
reimbursement from either Loadmasters or Glodel or both for breach of contract and/or tort.
The issue now is who, between Glodel and Loadmasters, is liable to pay R&B Insurance for the
amount of the indemnity it paid Columbia.
At the outset, it is well to resolve the issue of whether Loadmasters and Glodel are common carriers
to determine their liability for the loss of the subject cargo. Under Article 1732 of the Civil Code,
common carriers are persons, corporations, firms, or associations engaged in the business of
carrying or transporting passenger or goods, or both by land, water or air for compensation, offering
their services to the public.
Based on the aforecited definition, Loadmasters is a common carrier because it is engaged in the
business of transporting goods by land, through its trucking service. It is a common carrier as
distinguished from a private carrier wherein the carriage is generally undertaken by special
agreement and it does not hold itself out to carry goods for the general public.[10] The distinction is
significant in the sense that the rights and obligations of the parties to a contract of private carriage
are governed principally by their stipulations, not by the law on common carriers.[11]
44
In the present case, there is no indication that the undertaking in the contract between Loadmasters
and Glodel was private in character. There is no showing that Loadmasters solely and exclusively
rendered services to Glodel.
In fact, Loadmasters admitted that it is a common carrier.[12]
In the same vein, Glodel is also considered a common carrier within the context of Article 1732. In
its Memorandum,[13] it states that it is a corporation duly organized and existing under the laws of
the Republic of the Philippines and is engaged in the business of customs brokering. It cannot be
considered otherwise because as held by this Court in Schmitz Transport & Brokerage Corporation
v. Transport Venture, Inc.,[14] a customs broker is also regarded as a common carrier, the
transportation of goods being an integral part of its business.
Loadmasters and Glodel, being both common carriers, are mandated from the nature of their
business and for reasons of public policy, to observe the extraordinary diligence in the vigilance
over the goods transported by them according to all the circumstances of such case, as required by
Article 1733 of the Civil Code. When the Court speaks of extraordinary diligence, it is that extreme
measure of care and caution which persons of unusual prudence and circumspection observe for
securing and preserving their own property or rights.[15] This exacting standard imposed on
common carriers in a contract of carriage of goods is intended to tilt the scales in favor of the
shipper who is at the mercy of the common carrier once the goods have been lodged for
shipment.[16] Thus, in case of loss of the goods, the common carrier is presumed to have been at
fault or to have acted negligently.[17] This presumption of fault or negligence, however, may be
rebutted by proof that the common carrier has observed extraordinary diligence over the goods.
With respect to the time frame of this extraordinary responsibility, the Civil Code provides that the
exercise of extraordinary diligence lasts from the time the goods are unconditionally placed in the
possession of, and received by, the carrier for transportation until the same are delivered, actually or
constructively, by the carrier to the consignee, or to the person who has a right to receive them.[18]
Premises considered, the Court is of the view that both Loadmasters and Glodel are jointly and
severally liable to R & B Insurance for the loss of the subject cargo. Under Article 2194 of the New
Civil Code, the responsibility of two or more persons who are liable for a quasi-delict is solidary.
Loadmasters claim that it was never privy to the contract entered into by Glodel with the consignee
Columbia or R&B Insurance as subrogee, is not a valid defense. It may not have a direct contractual
relation with Columbia, but it is liable for tort under the provisions of Article 2176 of the Civil
Code on quasi-delicts which expressly provide:
ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and is governed by the provisions of
this Chapter.
Pertinent is the ruling enunciated in the case of Mindanao Terminal and Brokerage Service, Inc. v.
Phoenix Assurance Company of New York,/McGee & Co., Inc.[19] where this Court held that a
tort may arise despite the absence of a contractual relationship, to wit:
We agree with the Court of Appeals that the complaint filed by Phoenix and McGee against
Mindanao Terminal, from which the present case has arisen, states a cause of action. The present
action is based on quasi-delict, arising from the negligent and careless loading and stowing of the
cargoes belonging to Del Monte Produce. Even assuming that both Phoenix and McGee have only
been subrogated in the rights of Del Monte Produce, who is not a party to the contract of service
between Mindanao Terminal and Del Monte, still the insurance carriers may have a cause of action
in light of the Courts consistent ruling that the act that breaks the contract may be also a tort. In
fine, a liability for tort may arise even under a contract, where tort is that which breaches the
contract. In the present case, Phoenix and McGee are not suing for damages for injuries arising
from the breach of the contract of service but from the alleged negligent manner by which
Mindanao Terminal handled the cargoes belonging to Del Monte Produce. Despite the absence of
contractual relationship between Del Monte Produce and Mindanao Terminal, the allegation of
negligence on the part of the defendant should be sufficient to establish a cause of action arising
from quasi-delict. [Emphases supplied]
In connection therewith, Article 2180 provides:
ART. 2180. The obligation imposed by Article 2176 is demandable not only for ones own acts or
omissions, but also for those of persons for whom one is responsible.
xxxx
Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry.
It is not disputed that the subject cargo was lost while in the custody of Loadmasters whose
employees (truck driver and helper) were instrumental in the hijacking or robbery of the shipment.
As employer, Loadmasters should be made answerable for the damages caused by its employees
who acted within the scope of their assigned task of delivering the goods safely to the warehouse.
Whenever an employees negligence causes damage or injury to another, there instantly arises a
presumption juris tantum that the employer failed to exercise diligentissimi patris families in the
selection (culpa in eligiendo) or supervision (culpa in vigilando) of its employees.[20] To avoid
liability for a quasi-delict committed by its employee, an employer must overcome the presumption
by presenting convincing proof that he exercised the care and diligence of a good father of a family
in the selection and supervision of his employee.[21] In this regard, Loadmasters failed.
Glodel is also liable because of its failure to exercise extraordinary diligence. It failed to ensure that
Loadmasters would fully comply with the undertaking to safely transport the subject cargo to the
designated destination. It should have been more prudent in entrusting the goods to Loadmasters by
taking precautionary measures, such as providing escorts to accompany the trucks in delivering the
45
cargoes. Glodel should, therefore, be held liable with Loadmasters. Its defense of force majeure is
unavailing.
At this juncture, the Court clarifies that there exists no principal-agent relationship between Glodel
and Loadmasters, as erroneously found by the CA. Article 1868 of the Civil Code provides: By the
contract of agency a person binds himself to render some service or to do something in
representation or on behalf of another, with the consent or authority of the latter. The elements of a
contract of agency are: (1) consent, express or implied, of the parties to establish the relationship;
(2) the object is the execution of a juridical act in relation to a third person; (3) the agent acts as a
representative and not for himself; (4) the agent acts within the scope of his authority.[22]
Accordingly, there can be no contract of agency between the parties. Loadmasters never
represented Glodel. Neither was it ever authorized to make such representation. It is a settled rule
that the basis for agency is representation, that is, the agent acts for and on behalf of the principal
on matters within the scope of his authority and said acts have the same legal effect as if they were
personally executed by the principal. On the part of the principal, there must be an actual intention
to appoint or an intention naturally inferable from his words or actions, while on the part of the
agent, there must be an intention to accept the appointment and act on it.[23] Such mutual intent is
not obtaining in this case.
What then is the extent of the respective liabilities of Loadmasters and Glodel? Each wrongdoer is
liable for the total damage suffered by R&B Insurance. Where there are several causes for the
resulting damages, a party is not relieved from liability, even partially. It is sufficient that the
negligence of a party is an efficient cause without which the damage would not have resulted. It is
no defense to one of the concurrent tortfeasors that the damage would not have resulted from his
negligence alone, without the negligence or wrongful acts of the other concurrent tortfeasor. As
stated in the case of Far Eastern Shipping v. Court of Appeals,[24]
X x x. Where several causes producing an injury are concurrent and each is an efficient cause
without which the injury would not have happened, the injury may be attributed to all or any of the
causes and recovery may be had against any or all of the responsible persons although under the
circumstances of the case, it may appear that one of them was more culpable, and that the duty
owed by them to the injured person was not the same. No actor's negligence ceases to be a
proximate cause merely because it does not exceed the negligence of other actors. Each wrongdoer
is responsible for the entire result and is liable as though his acts were the sole cause of the injury.
There is no contribution between joint tortfeasors whose liability is solidary since both of them are
liable for the total damage. Where the concurrent or successive negligent acts or omissions of two
or more persons, although acting independently, are in combination the direct and proximate cause
of a single injury to a third person, it is impossible to determine in what proportion each contributed
to the injury and either of them is responsible for the whole injury. Where their concurring
negligence resulted in injury or damage to a third party, they become joint tortfeasors and are
solidarily liable for the resulting damage under Article 2194 of the Civil Code. [Emphasis supplied]
The Court now resolves the issue of whether Glodel can collect from Loadmasters, it having failed
to file a cross-claim against the latter.
Undoubtedly, Glodel has a definite cause of action against Loadmasters for breach of contract of
service as the latter is primarily liable for the loss of the subject cargo. In this case, however, it
cannot succeed in seeking judicial sanction against Loadmasters because the records disclose that it
did not properly interpose a cross-claim against the latter. Glodel did not even pray that
Loadmasters be liable for any and all claims that it may be adjudged liable in favor of R&B
Insurance. Under the Rules, a compulsory counterclaim, or a cross-claim, not set up shall be
barred.[25] Thus, a cross-claim cannot be set up for the first time on appeal.
For the consequence, Glodel has no one to blame but itself. The Court cannot come to its aid on
equitable grounds. Equity, which has been aptly described as a justice outside legality, is applied
only in the absence of, and never against, statutory law or judicial rules of procedure.[26] The Court
cannot be a lawyer and take the cudgels for a party who has been at fault or negligent.
WHEREFORE, the petition is PARTIALLY GRANTED. The August 24, 2007 Decision of the
Court of Appeals is MODIFIED to read as follows:
WHEREFORE, judgment is rendered declaring petitioner Loadmasters Customs Services, Inc. and
respondent Glodel Brokerage Corporation jointly and severally liable to respondent R&B Insurance
Corporation for the insurance indemnity it paid to consignee Columbia Wire & Cable Corporation
and ordering both parties to pay, jointly and severally, R&B Insurance Corporation a] the amount of
P1,896,789.62 representing the insurance indemnity; b] the amount equivalent to ten (10%) percent
thereof for attorneys fees; and c] the amount of P22,427.18 for litigation expenses.
The cross-claim belatedly prayed for by respondent Glodel Brokerage Corporation against
petitioner Loadmasters Customs Services, Inc. is DENIED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12191 October 14, 1918
JOSE CANGCO, plaintiff-appellant,
vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.
FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the
employment of Manila Railroad Company in the capacity of clerk, with a monthly wage of P25. He
46
lived in the pueblo of San Mateo, in the province of Rizal, which is located upon the line of the
defendant railroad company; and in coming daily by train to the company's office in the city of
Manila where he worked, he used a pass, supplied by the company, which entitled him to ride upon
the company's trains free of charge. Upon the occasion in question, January 20, 1915, the plaintiff
arose from his seat in the second class-car where he was riding and, making, his exit through the
door, took his position upon the steps of the coach, seizing the upright guardrail with his right hand
for support.
On the side of the train where passengers alight at the San Mateo station there is a cement platform
which begins to rise with a moderate gradient some distance away from the company's office and
extends along in front of said office for a distance sufficient to cover the length of several coaches.
As the train slowed down another passenger, named Emilio Zuñiga, also an employee of the
railroad company, got off the same car, alighting safely at the point where the platform begins to
rise from the level of the ground. When the train had proceeded a little farther the plaintiff Jose
Cangco stepped off also, but one or both of his feet came in contact with a sack of watermelons
with the result that his feet slipped from under him and he fell violently on the platform. His body
at once rolled from the platform and was drawn under the moving car, where his right arm was
badly crushed and lacerated. It appears that after the plaintiff alighted from the train the car moved
forward possibly six meters before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was
lighted dimly by a single light located some distance away, objects on the platform where the
accident occurred were difficult to discern especially to a person emerging from a lighted car.
The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is
found in the fact that it was the customary season for harvesting these melons and a large lot had
been brought to the station for the shipment to the market. They were contained in numerous sacks
which has been piled on the platform in a row one upon another. The testimony shows that this row
of sacks was so placed of melons and the edge of platform; and it is clear that the fall of the plaintiff
was due to the fact that his foot alighted upon one of these melons at the moment he stepped upon
the platform. His statement that he failed to see these objects in the darkness is readily to be
credited.
The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the
injuries which he had received were very serious. He was therefore brought at once to a certain
hospital in the city of Manila where an examination was made and his arm was amputated. The
result of this operation was unsatisfactory, and the plaintiff was then carried to another hospital
where a second operation was performed and the member was again amputated higher up near the
shoulder. It appears in evidence that the plaintiff expended the sum of P790.25 in the form of
medical and surgical fees and for other expenses in connection with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of
Manila to recover damages of the defendant company, founding his action upon the negligence of
the servants and employees of the defendant in placing the sacks of melons upon the platform and
leaving them so placed as to be a menace to the security of passenger alighting from the company's
trains. At the hearing in the Court of First Instance, his Honor, the trial judge, found the facts
substantially as above stated, and drew therefrom his conclusion to the effect that, although
negligence was attributable to the defendant by reason of the fact that the sacks of melons were so
placed as to obstruct passengers passing to and from the cars, nevertheless, the plaintiff himself had
failed to use due caution in alighting from the coach and was therefore precluded form recovering.
Judgment was accordingly entered in favor of the defendant company, and the plaintiff appealed.
It can not be doubted that the employees of the railroad company were guilty of negligence in piling
these sacks on the platform in the manner above stated; that their presence caused the plaintiff to
fall as he alighted from the train; and that they therefore constituted an effective legal cause of the
injuries sustained by the plaintiff. It necessarily follows that the defendant company is liable for the
damage thereby occasioned unless recovery is barred by the plaintiff's own contributory negligence.
In resolving this problem it is necessary that each of these conceptions of liability, to-wit, the
primary responsibility of the defendant company and the contributory negligence of the plaintiff
should be separately examined.
It is important to note that the foundation of the legal liability of the defendant is the contract of
carriage, and that the obligation to respond for the damage which plaintiff has suffered arises, if at
all, from the breach of that contract by reason of the failure of defendant to exercise due care in its
performance. That is to say, its liability is direct and immediate, differing essentially, in legal
viewpoint from that presumptive responsibility for the negligence of its servants, imposed by article
1903 of the Civil Code, which can be rebutted by proof of the exercise of due care in their selection
and supervision. Article 1903 of the Civil Code is not applicable to obligations arising ex contractu,
but only to extra-contractual obligations — or to use the technical form of expression, that article
relates only to culpa aquiliana and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly
points out this distinction, which was also recognized by this Court in its decision in the case of
Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In commenting upon article 1093
Manresa clearly points out the difference between "culpa, substantive and independent, which of
itself constitutes the source of an obligation between persons not formerly connected by any legal
tie" and culpa considered as an accident in the performance of an obligation already existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest squarely upon the proposition
that article 1903 of the Civil Code is not applicable to acts of negligence which constitute the
breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are understood to
be those not growing out of pre-existing duties of the parties to one another. But where relations
already formed give rise to duties, whether springing from contract or quasi-contract, then breaches
of those duties are subject to article 1101, 1103, and 1104 of the same code. (Rakes vs. Atlantic,
Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in
certain cases imposed upon employers with respect to damages occasioned by the negligence of
their employees to persons to whom they are not bound by contract, is not based, as in the English
Common Law, upon the principle of respondeat superior — if it were, the master would be liable in
every case and unconditionally — but upon the principle announced in article 1902 of the Civil
Code, which imposes upon all persons who by their fault or negligence, do injury to another, the
47
obligation of making good the damage caused. One who places a powerful automobile in the hands
of a servant whom he knows to be ignorant of the method of managing such a vehicle, is himself
guilty of an act of negligence which makes him liable for all the consequences of his imprudence.
The obligation to make good the damage arises at the very instant that the unskillful servant, while
acting within the scope of his employment causes the injury. The liability of the master is personal
and direct. But, if the master has not been guilty of any negligence whatever in the selection and
direction of the servant, he is not liable for the acts of the latter, whatever done within the scope of
his employment or not, if the damage done by the servant does not amount to a breach of the
contract between the master and the person injured.
It is not accurate to say that proof of diligence and care in the selection and control of the servant
relieves the master from liability for the latter's acts — on the contrary, that proof shows that the
responsibility has never existed. As Manresa says (vol. 8, p. 68) the liability arising from extra-
contractual culpa is always based upon a voluntary act or omission which, without willful intent,
but by mere negligence or inattention, has caused damage to another. A master who exercises all
possible care in the selection of his servant, taking into consideration the qualifications they should
possess for the discharge of the duties which it is his purpose to confide to them, and directs them
with equal diligence, thereby performs his duty to third persons to whom he is bound by no
contractual ties, and he incurs no liability whatever if, by reason of the negligence of his servants,
even within the scope of their employment, such third person suffer damage. True it is that under
article 1903 of the Civil Code the law creates a presumption that he has been negligent in the
selection or direction of his servant, but the presumption is rebuttable and yield to proof of due care
and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico
Code, has held that these articles are applicable to cases of extra-contractual culpa exclusively.
(Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its decision in the case of Bahia vs. Litonjua
and Leynes, (30 Phil. rep., 624), which was an action brought upon the theory of the extra-
contractual liability of the defendant to respond for the damage caused by the carelessness of his
employee while acting within the scope of his employment. The Court, after citing the last
paragraph of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury is caused by the negligence of a
servant or employee there instantly arises a presumption of law that there was negligence on the
part of the master or employer either in selection of the servant or employee, or in supervision over
him after the selection, or both; and (2) that that presumption is juris tantum and not juris et de jure,
and consequently, may be rebutted. It follows necessarily that if the employer shows to the
satisfaction of the court that in selection and supervision he has exercised the care and diligence of
a good father of a family, the presumption is overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on his own negligence and not on that
of his servant. This is the notable peculiarity of the Spanish law of negligence. It is, of course, in
striking contrast to the American doctrine that, in relations with strangers, the negligence of the
servant in conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of extra-contractual culpa based
upon negligence, it is necessary that there shall have been some fault attributable to the defendant
personally, and that the last paragraph of article 1903 merely establishes a rebuttable presumption,
is in complete accord with the authoritative opinion of Manresa, who says (vol. 12, p. 611) that the
liability created by article 1903 is imposed by reason of the breach of the duties inherent in the
special relations of authority or superiority existing between the person called upon to repair the
damage and the one who, by his act or omission, was the cause of it.
On the other hand, the liability of masters and employers for the negligent acts or omissions of their
servants or agents, when such acts or omissions cause damages which amount to the breach of a
contact, is not based upon a mere presumption of the master's negligence in their selection or
control, and proof of exercise of the utmost diligence and care in this regard does not relieve the
master of his liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual
obligation has its source in the breach or omission of those mutual duties which civilized society
imposes upon it members, or which arise from these relations, other than contractual, of certain
members of society to others, generally embraced in the concept of status. The legal rights of each
member of society constitute the measure of the corresponding legal duties, mainly negative in
character, which the existence of those rights imposes upon all other members of society. The
breach of these general duties whether due to willful intent or to mere inattention, if productive of
injury, give rise to an obligation to indemnify the injured party. The fundamental distinction
between obligations of this character and those which arise from contract, rests upon the fact that in
cases of non-contractual obligation it is the wrongful or negligent act or omission itself which
creates the vinculum juris, whereas in contractual relations the vinculum exists independently of the
breach of the voluntary duty assumed by the parties when entering into the contractual relation.
With respect to extra-contractual obligation arising from negligence, whether of act or omission, it
is competent for the legislature to elect — and our Legislature has so elected — whom such an
obligation is imposed is morally culpable, or, on the contrary, for reasons of public policy, to
extend that liability, without regard to the lack of moral culpability, so as to include responsibility
for the negligence of those person who acts or mission are imputable, by a legal fiction, to others
who are in a position to exercise an absolute or limited control over them. The legislature which
adopted our Civil Code has elected to limit extra-contractual liability — with certain well-defined
exceptions — to cases in which moral culpability can be directly imputed to the persons to be
charged. This moral responsibility may consist in having failed to exercise due care in the selection
and control of one's agents or servants, or in the control of persons who, by reason of their status,
occupy a position of dependency with respect to the person made liable for their conduct.
The position of a natural or juridical person who has undertaken by contract to render service to
another, is wholly different from that to which article 1903 relates. When the sources of the
obligation upon which plaintiff's cause of action depends is a negligent act or omission, the burden
of proof rests upon plaintiff to prove the negligence — if he does not his action fails. But when the
facts averred show a contractual undertaking by defendant for the benefit of plaintiff, and it is
alleged that plaintiff has failed or refused to perform the contract, it is not necessary for plaintiff to
specify in his pleadings whether the breach of the contract is due to willful fault or to negligence on
the part of the defendant, or of his servants or agents. Proof of the contract and of its
nonperformance is sufficient prima facie to warrant a recovery.
48

As a general rule . . . it is logical that in case of extra-contractual culpa, a suing creditor should
assume the burden of proof of its existence, as the only fact upon which his action is based; while
on the contrary, in a case of negligence which presupposes the existence of a contractual obligation,
if the creditor shows that it exists and that it has been broken, it is not necessary for him to prove
negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a contract to show that the
breach was due to the negligent conduct of defendant or of his servants, even though such be in fact
the actual cause of the breach, it is obvious that proof on the part of defendant that the negligence or
omission of his servants or agents caused the breach of the contract would not constitute a defense
to the action. If the negligence of servants or agents could be invoked as a means of discharging the
liability arising from contract, the anomalous result would be that person acting through the
medium of agents or servants in the performance of their contracts, would be in a better position
than those acting in person. If one delivers a valuable watch to watchmaker who contract to repair
it, and the bailee, by a personal negligent act causes its destruction, he is unquestionably liable.
Would it be logical to free him from his liability for the breach of his contract, which involves the
duty to exercise due care in the preservation of the watch, if he shows that it was his servant whose
negligence caused the injury? If such a theory could be accepted, juridical persons would enjoy
practically complete immunity from damages arising from the breach of their contracts if caused by
negligent acts as such juridical persons can of necessity only act through agents or servants, and it
would no doubt be true in most instances that reasonable care had been taken in selection and
direction of such servants. If one delivers securities to a banking corporation as collateral, and they
are lost by reason of the negligence of some clerk employed by the bank, would it be just and
reasonable to permit the bank to relieve itself of liability for the breach of its contract to return the
collateral upon the payment of the debt by proving that due care had been exercised in the selection
and direction of the clerk?
This distinction between culpa aquiliana, as the source of an obligation, and culpa contractual as a
mere incident to the performance of a contract has frequently been recognized by the supreme court
of Spain. (Sentencias of June 27, 1894; November 20, 1896; and December 13, 1896.) In the
decisions of November 20, 1896, it appeared that plaintiff's action arose ex contractu, but that
defendant sought to avail himself of the provisions of article 1902 of the Civil Code as a defense.
The Spanish Supreme Court rejected defendant's contention, saying:
These are not cases of injury caused, without any pre-existing obligation, by fault or negligence,
such as those to which article 1902 of the Civil Code relates, but of damages caused by the
defendant's failure to carry out the undertakings imposed by the contracts . . . .
A brief review of the earlier decision of this court involving the liability of employers for damage
done by the negligent acts of their servants will show that in no case has the court ever decided that
the negligence of the defendant's servants has been held to constitute a defense to an action for
damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage was
not liable for the damages caused by the negligence of his driver. In that case the court commented
on the fact that no evidence had been adduced in the trial court that the defendant had been
negligent in the employment of the driver, or that he had any knowledge of his lack of skill or
carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215), the
plaintiff sued the defendant for damages caused by the loss of a barge belonging to plaintiff which
was allowed to get adrift by the negligence of defendant's servants in the course of the performance
of a contract of towage. The court held, citing Manresa (vol. 8, pp. 29, 69) that if the "obligation of
the defendant grew out of a contract made between it and the plaintiff . . . we do not think that the
provisions of articles 1902 and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to recover
damages for the personal injuries caused by the negligence of defendant's chauffeur while driving
defendant's automobile in which defendant was riding at the time. The court found that the damages
were caused by the negligence of the driver of the automobile, but held that the master was not
liable, although he was present at the time, saying:
. . . unless the negligent acts of the driver are continued for a length of time as to give the owner a
reasonable opportunity to observe them and to direct the driver to desist therefrom. . . . The act
complained of must be continued in the presence of the owner for such length of time that the
owner by his acquiescence, makes the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil. Rep.,
8), it is true that the court rested its conclusion as to the liability of the defendant upon article 1903,
although the facts disclosed that the injury complaint of by plaintiff constituted a breach of the duty
to him arising out of the contract of transportation. The express ground of the decision in this case
was that article 1903, in dealing with the liability of a master for the negligent acts of his servants
"makes the distinction between private individuals and public enterprise;" that as to the latter the
law creates a rebuttable presumption of negligence in the selection or direction of servants; and that
in the particular case the presumption of negligence had not been overcome.
It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action as though
founded in tort rather than as based upon the breach of the contract of carriage, and an examination
of the pleadings and of the briefs shows that the questions of law were in fact discussed upon this
theory. Viewed from the standpoint of the defendant the practical result must have been the same in
any event. The proof disclosed beyond doubt that the defendant's servant was grossly negligent and
that his negligence was the proximate cause of plaintiff's injury. It also affirmatively appeared that
defendant had been guilty of negligence in its failure to exercise proper discretion in the direction
of the servant. Defendant was, therefore, liable for the injury suffered by plaintiff, whether the
breach of the duty were to be regarded as constituting culpa aquiliana or culpa contractual. As
Manresa points out (vol. 8, pp. 29 and 69) whether negligence occurs an incident in the course of
the performance of a contractual undertaking or its itself the source of an extra-contractual
undertaking obligation, its essential characteristics are identical. There is always an act or omission
productive of damage due to carelessness or inattention on the part of the defendant. Consequently,
when the court holds that a defendant is liable in damages for having failed to exercise due care,
either directly, or in failing to exercise proper care in the selection and direction of his servants, the
practical result is identical in either case. Therefore, it follows that it is not to be inferred, because
the court held in the Yamada case that defendant was liable for the damages negligently caused by
its servants to a person to whom it was bound by contract, and made reference to the fact that the
49
defendant was negligent in the selection and control of its servants, that in such a case the court
would have held that it would have been a good defense to the action, if presented squarely upon
the theory of the breach of the contract, for defendant to have proved that it did in fact exercise care
in the selection and control of the servant.
The true explanation of such cases is to be found by directing the attention to the relative spheres of
contractual and extra-contractual obligations. The field of non- contractual obligation is much more
broader than that of contractual obligations, comprising, as it does, the whole extent of juridical
human relations. These two fields, figuratively speaking, concentric; that is to say, the mere fact
that a person is bound to another by contract does not relieve him from extra-contractual liability to
such person. When such a contractual relation exists the obligor may break the contract under such
conditions that the same act which constitutes the source of an extra-contractual obligation had no
contract existed between the parties.
The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry him
in safety and to provide safe means of entering and leaving its trains (civil code, article 1258). That
duty, being contractual, was direct and immediate, and its non-performance could not be excused
by proof that the fault was morally imputable to defendant's servants.
The railroad company's defense involves the assumption that even granting that the negligent
conduct of its servants in placing an obstruction upon the platform was a breach of its contractual
obligation to maintain safe means of approaching and leaving its trains, the direct and proximate
cause of the injury suffered by plaintiff was his own contributory negligence in failing to wait until
the train had come to a complete stop before alighting. Under the doctrine of comparative
negligence announced in the Rakes case (supra), if the accident was caused by plaintiff's own
negligence, no liability is imposed upon defendant's negligence and plaintiff's negligence merely
contributed to his injury, the damages should be apportioned. It is, therefore, important to ascertain
if defendant was in fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come to a full stop before alighting,
the particular injury suffered by him could not have occurred. Defendant contends, and cites many
authorities in support of the contention, that it is negligence per se for a passenger to alight from a
moving train. We are not disposed to subscribe to this doctrine in its absolute form. We are of the
opinion that this proposition is too badly stated and is at variance with the experience of every-day
life. In this particular instance, that the train was barely moving when plaintiff alighted is shown
conclusively by the fact that it came to stop within six meters from the place where he stepped from
it. Thousands of person alight from trains under these conditions every day of the year, and sustain
no injury where the company has kept its platform free from dangerous obstructions. There is no
reason to believe that plaintiff would have suffered any injury whatever in alighting as he did had it
not been for defendant's negligent failure to perform its duty to provide a safe alighting place.
We are of the opinion that the correct doctrine relating to this subject is that expressed in
Thompson's work on Negligence (vol. 3, sec. 3010) as follows:
The test by which to determine whether the passenger has been guilty of negligence in attempting
to alight from a moving railway train, is that of ordinary or reasonable care. It is to be considered
whether an ordinarily prudent person, of the age, sex and condition of the passenger, would have
acted as the passenger acted under the circumstances disclosed by the evidence. This care has been
defined to be, not the care which may or should be used by the prudent man generally, but the care
which a man of ordinary prudence would use under similar circumstances, to avoid injury."
(Thompson, Commentaries on Negligence, vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil. rep.,
809), we may say that the test is this; Was there anything in the circumstances surrounding the
plaintiff at the time he alighted from the train which would have admonished a person of average
prudence that to get off the train under the conditions then existing was dangerous? If so, the
plaintiff should have desisted from alighting; and his failure so to desist was contributory
negligence.1awph!l.net
As the case now before us presents itself, the only fact from which a conclusion can be drawn to the
effect that plaintiff was guilty of contributory negligence is that he stepped off the car without being
able to discern clearly the condition of the platform and while the train was yet slowly moving. In
considering the situation thus presented, it should not be overlooked that the plaintiff was, as we
find, ignorant of the fact that the obstruction which was caused by the sacks of melons piled on the
platform existed; and as the defendant was bound by reason of its duty as a public carrier to afford
to its passengers facilities for safe egress from its trains, the plaintiff had a right to assume, in the
absence of some circumstance to warn him to the contrary, that the platform was clear. The place,
as we have already stated, was dark, or dimly lighted, and this also is proof of a failure upon the
part of the defendant in the performance of a duty owing by it to the plaintiff; for if it were by any
possibility concede that it had right to pile these sacks in the path of alighting passengers, the
placing of them adequately so that their presence would be revealed.
As pertinent to the question of contributory negligence on the part of the plaintiff in this case the
following circumstances are to be noted: The company's platform was constructed upon a level
higher than that of the roadbed and the surrounding ground. The distance from the steps of the car
to the spot where the alighting passenger would place his feet on the platform was thus reduced,
thereby decreasing the risk incident to stepping off. The nature of the platform, constructed as it
was of cement material, also assured to the passenger a stable and even surface on which to alight.
Furthermore, the plaintiff was possessed of the vigor and agility of young manhood, and it was by
no means so risky for him to get off while the train was yet moving as the same act would have
been in an aged or feeble person. In determining the question of contributory negligence in
performing such act — that is to say, whether the passenger acted prudently or recklessly — the
age, sex, and physical condition of the passenger are circumstances necessarily affecting the safety
of the passenger, and should be considered. Women, it has been observed, as a general rule are less
capable than men of alighting with safety under such conditions, as the nature of their wearing
apparel obstructs the free movement of the limbs. Again, it may be noted that the place was
perfectly familiar to the plaintiff as it was his daily custom to get on and of the train at this station.
There could, therefore, be no uncertainty in his mind with regard either to the length of the step
which he was required to take or the character of the platform where he was alighting. Our
conclusion is that the conduct of the plaintiff in undertaking to alight while the train was yet slightly
under way was not characterized by imprudence and that therefore he was not guilty of contributory
negligence.
The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as a
copyist clerk, and that the injuries he has suffered have permanently disabled him from continuing
that employment. Defendant has not shown that any other gainful occupation is open to plaintiff.
50
His expectancy of life, according to the standard mortality tables, is approximately thirty-three
years. We are of the opinion that a fair compensation for the damage suffered by him for his
permanent disability is the sum of P2,500, and that he is also entitled to recover of defendant the
additional sum of P790.25 for medical attention, hospital services, and other incidental expenditures
connected with the treatment of his injuries.
The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum of
P3,290.25, and for the costs of both instances. So ordered.
SECOND DIVISION
G.R. No. 122039 May 31, 2000
VICENTE CALALAS, petitioner,
vs.
COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO SALVA,
respondents.
MENDOZA, J.:
This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated March 31,
1991, reversing the contrary decision of the Regional Trial Court, Branch 36, Dumaguete City, and
awarding damages instead to private respondent Eliza Jujeurche Sunga as plaintiff in an action for
breach of contract of carriage.
The facts, as found by the Court of Appeals, are as follows:
At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche G. Sunga, then
a college freshman majoring in Physical Education at the Siliman University, took a passenger
jeepney owned and operated by petitioner Vicente Calalas. As the jeepney was filled to capacity of
about 24 passengers, Sunga was given by the conductor an "extension seat," a wooden stool at the
back of the door at the rear end of the vehicle.
On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off. As
she was seated at the rear of the vehicle, Sunga gave way to the outgoing passenger. Just as she was
doing so, an Isuzu truck driven by Iglecerio Verena and owned by Francisco Salva bumped the left
rear portion of the jeepney. As a result, Sunga was injured. She sustained a fracture of the "distal
third of the left tibia-fibula with severe necrosis of the underlying skin." Closed reduction of the
fracture, long leg circular casting, and case wedging were done under sedation. Her confinement in
the hospital lasted from August 23 to September 7, 1989. Her attending physician, Dr. Danilo V.
Oligario, an orthopedic surgeon, certified she would remain on a cast for a period of three months
and would have to ambulate in crutches during said period.
On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of the
contract of carriage by the former in failing to exercise the diligence required of him as a common
carrier. Calalas, on the other hand, filed a third-party complaint against Francisco Salva, the owner
of the Isuzu truck.
The lower court rendered judgment against Salva as third-party defendant and absolved Calalas of
liability, holding that it was the driver of the Isuzu truck who was responsible for the accident. It
took cognizance of another case (Civil Case No. 3490), filed by Calalas against Salva and Verena,
for quasi-delict, in which Branch 37 of the same court held Salva and his driver Verena jointly
liable to Calalas for the damage to his jeepney.
On appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground that
Sunga's cause of action was based on a contract of carriage, not quasi-delict, and that the common
carrier failed to exercise the diligence required under the Civil Code. The appellate court dismissed
the third-party complaint against Salva and adjudged Calalas liable for damages to Sunga. The
dispositive portion of its decision reads:
WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and another
one is entered ordering defendant-appellee Vicente Calalas to pay plaintiff-appellant:
(1) P50,000.00 as actual and compensatory damages;
(2) P50,000.00 as moral damages;
(3) P10,000.00 as attorney's fees; and
(4) P1,000.00 as expenses of litigation; and
(5) to pay the costs.
SO ORDERED.
Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the negligence
of Verena was the proximate cause of the accident negates his liability and that to rule otherwise
would be to make the common carrier an insurer of the safety of its passengers. He contends that
the bumping of the jeepney by the truck owned by Salva was a caso fortuito. Petitioner further
assails the award of moral damages to Sunga on the ground that it is not supported by evidence.
The petition has no merit.
The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the
owner of the truck liable for quasi-delict ignores the fact that she was never a party to that case and,
therefore, the principle of res judicata does not apply.
Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in Civil Case
No. 3490 was whether Salva and his driver Verena were liable for quasi-delict for the damage
caused to petitioner's jeepney. On the other hand, the issue in this case is whether petitioner is liable
on his contract of carriage. The first, quasi-delict, also known as culpa aquiliana or culpa extra
contractual, has as its source the negligence of the tortfeasor. The second, breach of contract or
culpa contractual, is premised upon the negligence in the performance of a contractual obligation.
51
Consequently, in quasi-delict, the negligence or fault should be clearly established because it is the
basis of the action, whereas in breach of contract, the action can be prosecuted merely by proving
the existence of the contract and the fact that the obligor, in this case the common carrier, failed to
transport his passenger safely to his destination.2 In case of death or injuries to passengers, Art.
1756 of the Civil Code provides that common carriers are presumed to have been at fault or to have
acted negligently unless they prove that they observed extraordinary diligence as defined in Arts.
1733 and 1755 of the Code. This provision necessarily shifts to the common carrier the burden of
proof.
There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva and
his driver Verena liable for the damage to petitioner's jeepney, should be binding on Sunga. It is
immaterial that the proximate cause of the collision between the jeepney and the truck was the
negligence of the truck driver. The doctrine of proximate cause is applicable only in actions for
quasi-delict, not in actions involving breach of contract. The doctrine is a device for imputing
liability to a person where there is no relation between him and another party. In such a case, the
obligation is created by law itself. But, where there is a pre-existing contractual relation between
the parties, it is the parties themselves who create the obligation, and the function of the law is
merely to regulate the relation thus created. Insofar as contracts of carriage are concerned, some
aspects regulated by the Civil Code are those respecting the diligence required of common carriers
with regard to the safety of passengers as well as the presumption of negligence in cases of death or
injury to passengers. It provides:
Art. 1733. Common carriers, from the nature of their business and for reasons of public
policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the
safety of the passengers transported by them, according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734,
1735, and 1746, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the passengers
is further set forth in articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the passengers safely as far as human care
and foresight can provide, using the utmost diligence of very cautious persons, with due regard for
all the circumstances.
Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to
have been at fault or to have acted negligently, unless they prove that they observed extraordinary
diligence as prescribed by articles 1733 and 1755.
In the case at bar, upon the happening of the accident, the presumption of negligence at once arose,
and it became the duty of petitioner to prove that he had to observe extraordinary diligence in the
care of his passengers.
Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could
provide, using the utmost diligence of very cautious persons, with due regard for all the
circumstances" as required by Art. 1755? We do not think so. Several factors militate against
petitioner's contention.
First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion being
exposed about two meters from the broad shoulders of the highway, and facing the middle of the
highway in a diagonal angle. This is a violation of the R.A. No. 4136, as amended, or the Land
Transportation and Traffic Code, which provides:
Sec. 54. Obstruction of Traffic. — No person shall drive his motor vehicle in such a manner as to
obstruct or impede the passage of any vehicle, nor, while discharging or taking on passengers or
loading or unloading freight, obstruct the free passage of other vehicles on the highway.
Second, it is undisputed that petitioner's driver took in more passengers than the allowed seating
capacity of the jeepney, a violation of §32(a) of the same law. It provides:
Exceeding registered capacity. — No person operating any motor vehicle shall allow more
passengers or more freight or cargo in his vehicle than its registered capacity.
The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to which
the other passengers were exposed. Therefore, not only was petitioner unable to overcome the
presumption of negligence imposed on him for the injury sustained by Sunga, but also, the evidence
shows he was actually negligent in transporting passengers.
We find it hard to give serious thought to petitioner's contention that Sunga's taking an "extension
seat" amounted to an implied assumption of risk. It is akin to arguing that the injuries to the many
victims of the tragedies in our seas should not be compensated merely because those passengers
assumed a greater risk of drowning by boarding an overloaded ferry. This is also true of petitioner's
contention that the jeepney being bumped while it was improperly parked constitutes caso fortuito.
A caso fortuito is an event which could not be foreseen, or which, though foreseen, was inevitable.3
This requires that the following requirements be present: (a) the cause of the breach is independent
of the debtor's will; (b) the event is unforeseeable or unavoidable; (c) the event is such as to render
it impossible for the debtor to fulfill his obligation in a normal manner, and (d) the debtor did not
take part in causing the injury to the
creditor.4 Petitioner should have foreseen the danger of parking his jeepney with its body
protruding two meters into the highway.
Finally, petitioner challenges the award of moral damages alleging that it is excessive and without
basis in law. We find this contention well taken.
In awarding moral damages, the Court of Appeals stated:
Plaintiff-appellant at the time of the accident was a first-year college student in that school year
1989-1990 at the Silliman University, majoring in Physical Education. Because of the injury, she
was not able to enroll in the second semester of that school year. She testified that she had no more
intention of continuing with her schooling, because she could not walk and decided not to pursue
her degree, major in Physical Education "because of my leg which has a defect already."
Plaintiff-appellant likewise testified that even while she was under confinement, she cried in pain
because of her injured left foot. As a result of her injury, the Orthopedic Surgeon also certified that
she has "residual bowing of the fracture side." She likewise decided not to further pursue Physical
Education as her major subject, because "my left leg . . . has a defect already."
52

Those are her physical pains and moral sufferings, the inevitable bedfellows of the injuries that she
suffered. Under Article 2219 of the Civil Code, she is entitled to recover moral damages in the sum
of P50,000.00, which is fair, just and reasonable.
As a general rule, moral damages are not recoverable in actions for damages predicated on a breach
of contract for it is not one of the items enumerated under Art. 2219 of the Civil Code.5 As an
exception, such damages are recoverable: (1) in cases in which the mishap results in the death of a
passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the Civil Code; and (2) in the
cases in which the carrier is guilty of fraud or bad faith, as provided in Art. 2220.6
In this case, there is no legal basis for awarding moral damages since there was no factual finding
by the appellate court that petitioner acted in bad faith in the performance of the contract of
carriage. Sunga's contention that petitioner's admission in open court that the driver of the jeepney
failed to assist her in going to a nearby hospital cannot be construed as an admission of bad faith.
The fact that it was the driver of the Isuzu truck who took her to the hospital does not imply that
petitioner was utterly indifferent to the plight of his injured passenger. If at all, it is merely implied
recognition by Verena that he was the one at fault for the accident.
WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution,
dated September 11, 1995, are AFFIRMED, with the MODIFICATION that the award of moral
damages is DELETED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 1719 January 23, 1907
M. H., RAKES, plaintiff-appellee,
vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.
A. D. Gibbs for appellant.
F. G. Waite, & Thimas Kepner for appellee.
TRACEY, J.:
This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the
employment of the defendant, was at work transporting iron rails from a barge in the harbor to the
company's yard near the malecon in Manila. Plaintiff claims that but one hand car was used in this
work. The defendant has proved that there were two immediately following one another, upon
which were piled lengthwise seven rails, each weighing 560 pounds, so that the ends of the rails lay
upon two crosspieces or sills secured to the cars, but without side pieces or guards to prevent them
from slipping off. According to the testimony of the plaintiff, the men were either in the rear of the
car or at its sides. According to that defendant, some of them were also in front, hauling by a rope.
At a certain spot at or near the water's edge the track sagged, the tie broke, the car either canted or
upset, the rails slid off and caught the plaintiff, breaking his leg, which was afterwards amputated at
about the knee.
This first point for the plaintiff to establish was that the accident happened through the negligence
of the defendant. The detailed description by the defendant's witnesses of the construction and
quality of the track proves that if was up to the general stranded of tramways of that character, the
foundation consisting on land of blocks or crosspieces of wood, by 8 inches thick and from 8 to 10
feet long laid, on the surface of the ground, upon which at a right angle rested stringers of the same
thickness, but from 24 to 30 feet in length. On the across the stringers the parallel with the blocks
were the ties to which the tracks were fastened. After the road reached the water's edge, the blocks
or crosspieces were replaced with pilling, capped by timbers extending from one side to the other.
The tracks were each about 2 feet wide and the two inside rails of the parallel tracks about 18
inches apart. It was admitted that there were no side pieces or guards on the car; that where no ends
of the rails of the track met each other and also where the stringers joined, there were no fish plates.
the defendant has not effectually overcome the plaintiff's proof that the joints between the rails
were immediately above the joints between the underlying stringers.
The cause of the sagging of the tracks and the breaking of the tie, which was the immediate
occasion of the accident, is not clear in the evidence, but is found by the trial court and is admitted
in the briefs and in the argument to have been the dislodging of the crosspiece or piling under the
stringer by the water of the bay raised by a recent typhoon. The superintendent of the company
attributed it to the giving way of the block laid in the sand. No effort was made to repair the injury
at the time of the occurrence. According to plaintiffs witnesses, a depression of the track, varying
from one half inch to one inch and a half, was therafter apparent to the eye, and a fellow workman
of the plaintiff swears that the day before the accident he called the attention of McKenna, the
foreman, to it and asked by simply straightening out the crosspiece, resetting the block under the
stringer and renewing the tie, but otherwise leaving the very same timbers as before. It has not
proven that the company inspected the track after the typhoon or had any proper system of
inspection.
In order to charge the defendant with negligence, it was necessary to show a breach of duty on its
part in failing either to properly secure the load on iron to vehicles transporting it, or to skillfully
build the tramway or to maintain it in proper condition, or to vigilantly inspect and repair the
roadway as soon as the depression in it became visible. It is upon the failure of the defendant to
repair the weakened track, after notice of its condition, that the judge below based his judgment.
This case presents many important matters for our decision, and first among them is the standard of
duty which we shall establish in our jurisprudence on the part of employees toward employees.
The lack or the harshness of legal rules on this subject has led many countries to enact designed to
put these relations on a fair basis in the form of compensation or liability laws or the institution of
insurance. In the absence of special legislation we find no difficulty in so applying the general
principles of our law as to work out a just result.
Article 1092 of the Civil Code provides:
53
Civil obligations, arising from crimes or misdemeanors, shall be governed by the provisions of the
Penal Code.
And article 568 of the latter code provides:
He who shall execute through reckless negligence an act that if done with malice would constitute a
grave crime, shall be punished.
And article 590 provides that the following shall be punished:
4. Those who by simple imprudence or negligence, without committing any infraction of
regulations, shall cause an injury which, had malice intervened, would have constituted a crime or
misdemeanor.
And finally by articles 19 and 20, the liability of owners and employers for the faults of their
servants and representatives is declared to be civil and subsidiary in its character.
It is contented by the defendant, as its first defense to the action, that the necessary conclusion from
these collated laws is that the remedy for injuries through negligence lies only in a criminal action
in which the official criminally responsible must be made primarily liable and his employer held
only subsidiarily to him. According to this theory the plaintiff should have procured the arrest of the
representative of the company accountable for not repairing the tract, and on his prosecution a
suitable fine should have been imposed, payable primarily by him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the
Civil Code makes obligations arising from faults or negligence not punished by the law, subject to
the provisions of Chapter 11 of Title XVI. Section 1902 of that chapter reads:
A person who by an act or omission causes damage to another when there is fault or negligence
shall be obliged to repair the damage so done.
SEC. 1903. The obligation imposed by the preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be responsible.
The father, and on his death or incapacity, the mother, is liable for the damages caused by the
minors who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are equally liable for the damages caused by
their employees in the service of the branches in which the latter may be employed or in the
performance of their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons mentioned therein prove that
they employed all the diligence of a good father of a family to avoid the damages.
As an answer to the argument urged in this particular action it may be sufficient to point out that
nowhere in our general statutes is the employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one "not punished by the law " and falls
under civil rather than criminal jurisprudence. But the answer may be a broader one. We should be
reluctant, under any conditions, to adopt a forced construction of these scientific codes, such as is
proposed by the defendant, that would rob some of these articles of effect, would shut out litigants
their will from the civil courts, would make the assertion of their rights dependent upon the
selection for prosecution of the proper criminal offender, and render recovery doubtful by reason of
the strict rules of proof prevailing in criminal actions. Even if these articles had always stood alone,
such a construction would be unnecessary, but clear light is thrown upon their meaning by the
provisions of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal), which,
though n ever in actual force in these Islands, was formerly given a suppletory or explanatory
effect. Under article 111 of this law, both classes of action, civil and criminal, might be prosecuted
jointly or separately, but while the penal action was pending the civil was suspended. According to
article 112, the penal action once started, the civil remedy should be sought therewith, unless it had
been waived by the party injured or been expressly reserved by him for civil proceedings for the
future. If the civil action alone was prosecuted, arising out of a crime that could be enforced by only
on private complaint, the penal action thereunder should be extinguished. These provisions are in
harmony with those of articles 23 and 133 of our Penal Code on the same subject.
An examination of this topic might be carried much further, but the citations of these articles
suffices to show that the civil liability was not intended to be merged in the criminal nor even to be
suspended thereby, except as expressly provided by law. Where an individual is civilly liable for a
negligent act or omission, it is not required that the inured party should seek out a third person
criminally liable whose prosecution must be a condition precedent to the enforcement of the civil
right.
Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary
in respect of criminal actions against his employees only while they are process of prosecution, or
in so far as they determinate the existence of the criminal act from which liability arises, and his
obligation under the civil law and its enforcement in the civil courts is not barred thereby unless by
election of the injured person. Inasmuch as no criminal in question, the provisions of the Penal
Code can not affect this action. This construction renders it unnecessary to finally determine here
whether this subsidiary civil liability in penal actions survived the laws that fully regulated it or has
been abrogated by the American civil and criminal procedure now in force in the Philippines.
The difficulty in construing the articles of the code above cited in this case appears from the briefs
before us to have arisen from the interpretation of the words of article 1093, "fault or negligence not
punished by law," as applied to the comprehensive definition of offenses in articles 568 and 590 of
the Penal Code. It has been shown that the liability of an employer arising out of his relation to his
employee who is the offender is not to be regarded as derived from negligence punished by the law,
within the meaning of articles 1092 and 1093. More than this, however, it can not be said to fall
within the class of acts unpunished by the law, the consequences of which are regulated by articles
1902 and 1903 of the Civil Code. The acts to which these articles are applicable are understood to
be those and growing out of preexisting duties of the parties to one another. But were relations
already formed give rise to duties, whether springing from contract or quasi contract, then breaches
of those duties are subject to articles 1101, 1103, and 1104, of the same code. A typical application
54
of the distinction may be found in the consequences of a railway accident due to defective
machinery supplied by the employer. His liability to his employee would arise out of the contract of
employment, that to the passengers out of the contract for passage. while that to that injured
bystander would originate in the negligent act itself. This distinction is thus clearly set forth by
Manresa in his commentary on article 1093.
We are with reference to such obligations, that culpa, or negligence, may be understood in two
difference senses; either as culpa, substantive and independent, which on account of its origin arises
in an obligation between two persons not formerly bound by any other obligation; or as an incident
in the performance of an obligation; or as already existed, which can not be presumed to exist
without the other, and which increases the liability arising from the already exiting obligation.
Of these two species of culpa the first one mentioned, existing by itself, may be also considered as a
real source of an independent obligation, and, as chapter 2, title 16 of this book of the code is
devoted to it, it is logical to presume that the reference contained in article 1093 is limited thereto
and that it does not extend to those provisions relating to the other species of culpa (negligence), the
nature of which we will discuss later. (Vol. 8, p. 29.)
And in his commentary on articles 1102 and 1104 he says that these two species of negligence may
be somewhat inexactly described as contractual and extra-contractual, the letter being the culpa
aquiliana of the Roman law and not entailing so strict an obligation as the former. This terminology
is unreservedly accepted by Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II,
No. 12), and the principle stated is supported be decisions of the supreme court of Spain, among
them those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75
Jurisprudencia Civil, No. 182). The contract is one for hire and not one of mandate. (March 10,
1897, 81 Jurisprudencia Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30,
1900, throws uncertain light on the relation between master and workman. Moved by the quick
industrial development of their people, the courts of France early applied to the subject the
principles common to the law of both countries, which are lucidly discussed by the leading French
commentators.
The original French theory, resting the responsibility of owners of industrial enterprises upon
articles 1382, 1383, and 1384 of the Code Napoleon, corresponding in scope to articles 1902 and
1903 of the Spanish Code, soon yielded to the principle that the true basis is the contractual
obligation of the employer and employee. (See 18 Dalloz, 196, Title Travail, 331.)
Later the hardships resulting from special exemptions inserted in contracts for employment led to
the discovery of a third basis for liability in an article of he French Code making the possessor of
any object answerable for damage done by it while in his charge. Our law having no counterpart of
this article, applicable to every kind of object, we need consider neither the theory growing out of it
nor that of "professional risk" more recently imposed by express legislation, but rather adopting the
interpretation of our Civil Code above given, find a rule for this case in the contractual obligation.
This contractual obligation, implied from the relation and perhaps so inherent in its nature to be
invariable by the parties, binds the employer to provide safe appliances for the use of the employee,
thus closely corresponding to English and American Law. On these principles it was the duty of the
defendant to build and to maintain its track in reasonably sound condition, so as to protect its
workingmen from unnecessary danger. It is plain that in one respect or the other it failed in its duty,
otherwise the accident could not have occurred; consequently the negligence of the defendant is
established.
Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to his
employment and, as such, one assumed by him. It is evident that this can not be the case if the
occurrence was due to the failure to repair the track or to duly inspect, it for the employee is not
presumed to have stipulated that the employer might neglect his legal duty. Nor may it be excused
upon the ground that the negligence leading to the accident was that of a fellow-servant of the
injured man. It is not apparent to us that the intervention of a third person can relieve the defendant
from the performance of its duty nor impose upon the plaintiff the consequences of an act or
omission not his own. Sua cuique culpa nocet. This doctrine, known as "the fellow-servant, rule,"
we are not disposed to introduce into our jurisprudence. Adopted in England by Lord Abinger in the
case of Prescott vs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since been effectually abrogated
by "the Employers' Liability Acts" and the "Compensation Law." The American States which
applied it appear to be gradually getting rid of it; for instance, the New York State legislature of
1906 did away with it in respect to railroad companies, and had in hand a scheme for its total
abolition. It has never found place in the civil law of continental Europe. (Dalloz, vol. 39, 1858,
Title Responsibilite, 630, and vol. 15, 1895, same title, 804. Also more recent instances in Fuzier-
Herman, Title Responsibilite Civile, 710.)
The French Cour de Cassation clearly laid down the contrary principle in its judgment of June 28,
1841, in the case of Reygasse, and has since adhered to it.
The most controverted question in the case is that of the negligence of the plaintiff, contributing to
the accident, to what extent it existed in fact and what legal effect is to be given it. In two
particulars is he charged with carelessness:
First. That having noticed the depression in the track he continued his work; and
Second. That he walked on the ends of the ties at the side of the car instead of along the boards,
either before or behind it.
As to the first point, the depression in the track night indicate either a serious or a rival difficulty.
There is nothing in the evidence to show that the plaintiff did or could see the displaced timber
underneath the sleeper. The claim that he must have done so is a conclusion drawn from what is
assumed to have been a probable condition of things not before us, rather than a fair inference from
the testimony. While the method of construction may have been known to the men who had helped
build the road, it was otherwise with the plaintiff who had worked at this job less than two days. A
man may easily walk along a railway without perceiving a displacement of the underlying timbers.
The foreman testified that he knew the state of the track on the day of the accident and that it was
then in good condition, and one Danridge, a witness for the defendant, working on the same job,
swore that he never noticed the depression in the track and never saw any bad place in it. The
sagging of the track this plaintiff did perceive, but that was reported in his hearing to the foreman
who neither promised nor refused to repair it. His lack of caution in continuing at his work after
noticing the slight depression of the rail was not of so gross a nature as to constitute negligence,
barring his recovery under the severe American rule. On this point we accept the conclusion of the
trial judge who found as facts that "the plaintiff did not know the cause of the one rail being lower
55
than then other" and "it does not appear in this case that the plaintiff knew before the accident
occurred that the stringers and rails joined in the same place."
Were we not disposed to agree with these findings they would, nevertheless, be binding upon us,
because not "plainly and manifestly against the weight of evidence," as those words of section 497,
paragraph 3 of the Code of Civil Procedure were interpreted by the Supreme Court of the United
States in the De la Rama case (201 U. S., 303).
In respect of the second charge of negligence against the plaintiff, the judgment below is not so
specific. While the judge remarks that the evidence does not justify the finding that the car was
pulled by means of a rope attached to the front end or to the rails upon it, and further that the
circumstances in evidence make it clear that the persons necessary to operate the car could not walk
upon the plank between the rails and that, therefore, it was necessary for the employees moving it to
get hold upon it as best they could, there is no specific finding upon the instruction given by the
defendant to its employees to walk only upon the planks, nor upon the necessity of the plaintiff
putting himself upon the ties at the side in order to get hold upon the car. Therefore the findings of
the judge below leave the conduct of the plaintiff in walking along the side of the loaded car, upon
the open ties, over the depressed track, free to our inquiry.
While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in this
way, but were expressly directed by the foreman to do so, both the officers of the company and
three of the workmen testify that there was a general prohibition frequently made known to all the
gang against walking by the side of the car, and the foreman swears that he repeated the prohibition
before the starting of this particular load. On this contradiction of proof we think that the
preponderance is in favor of the defendant's contention to the extent of the general order being
made known to the workmen. If so, the disobedience of the plaintiff in placing himself in danger
contributed in some degree to the injury as a proximate, although not as its primary cause. This
conclusion presents sharply the question, What effect is to be given such an act of contributory
negligence? Does it defeat a recovery, according to the American rule, or is it to be taken only in
reduction of damages?
While a few of the American States have adopted to a greater or less extent the doctrine of
comparative negligence, allowing a recovery by a plaintiff whose own act contributed to his injury,
provided his negligence was slight as compared with that of the defendant, and some others have
accepted the theory of proportional damages, reducing the award to a plaintiff in proportion to his
responsibility for the accident, yet the overwhelming weight of adjudication establishes the
principle in American jurisprudence that any negligence, however slight, on the part of the person
injured which is one of the causes proximately contributing to his injury, bars his recovery. (English
and American Encyclopedia of law, Titles "Comparative Negligence" and Contributory
Negligence.")
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme Court of the
United States thus authoritatively states the present rule of law:
Although the defendant's' negligence may have been the primary cause of the injury complained of,
yet an action for such injury can not be maintained if the proximate and immediate cause of the
injury can be traced to the want of ordinary care and caution in the person injured; subject to this
qualification, which has grown up in recent years (having been first enunciated in Davies vs. Mann,
10 M. & W., 546) that the contributory negligence of the party injured will not defeat the action if it
be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided
the consequences of the injured party's negligence.
There are may cases in the supreme court of Spain in which the defendant was exonerated, but
when analyzed they prove to have been decided either upon the point that he was not negligent or
that the negligence of the plaintiff was the immediate cause of the casualty or that the accident was
due to casus fortuitus. Of the first class in the decision of January 26, 1887 (38 Jurisprudencia
Criminal, No. 70), in which a railway employee, standing on a car, was thrown therefrom and killed
by the shock following the backing up of the engine. It was held that the management of the train
and engine being in conformity with proper rules of the company, showed no fault on its part.
Of the second class are the decision of the 15th of January, the 19th of February, and the 7th of
March, 1902, stated in Alcubilla's Index of that year; and of the third class the decision of the 4th of
June, 1888 (64 Jurisprudencia Civil, No. 1), in which the breaking down of plaintiff's dam by the
logs of the defendant impelled against it by the Tajo River, was held due to a freshet as a fortuitous
cause.
The decision of the 7th of March, 1902, on which stress has been laid, rested on two bases, one, that
the defendant was not negligent, because expressly relieved by royal order from the common
obligation imposed by the police law of maintaining a guard at the road crossing; the other, because
the act of the deceased in driving over level ground with unobstructed view in front of a train
running at speed, with the engine whistle blowing was the determining cause of the accident. It is
plain that the train was doing nothing but what it had a right to do and that the only fault lay with
the injured man. His negligence was not contributory, it was sole, and was of such an efficient
nature that without it no catastrophe could have happened.
On the other hand, there are many cases reported in which it seems plain that the plaintiff sustaining
damages was not free from contributory negligence; for instance, the decision of the 14th of
December, 1894 (76 Jurisprudencia Civil, No. 134), in which the owner of a building was held
liable for not furnishing protection to workmen engaged in hanging out flags, when the latter must
have perceived beforehand the danger attending the work.
None of those cases define the effect to be given the negligence of a plaintiff which contributed to
his injury as one of its causes, though not the principal one, and we are left to seek the theory of the
civil law in the practice of other countries.
In France in the case of Marquant, August 20, 1879, the cour de cassation held that the carelessness
of the victim did not civilly relieve the person without whose fault the accident could not have
happened, but that the contributory negligence of the injured man had the effect only of reducing
the damages. The same principle was applied in the case of Recullet, November 10, 1888. and that
of Laugier of the 11th of November, 1896. (Fuzier-Herman, Title Responsibilite Cirile, 411, 412.)
Of like tenor are citations in Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol. 15, 1895, Title
Responsibilite, 193, 198).
In the Canadian Province of Quebee, which has retained for the most part the French Civil Law,
now embodied in a code following the Code Napoleon, a practice in accord with that of France is
laid down in many cases collected in the annotations to article 1053 of the code edited by
56
Beauchamps, 1904. One of these is Luttrell vs. Trottier, reported in La Revue de Jurisprudence,
volume 6, page 90, in which the court of Kings bench, otherwise known as the court of appeals, the
highest authority in the Dominion of Canada on points of French law, held that contributory
negligence did not exonerate the defendants whose fault had been the immediate cause of the
accident, but entitled him to a reduction of damages. Other similar cases in the provincial courts
have been overruled by appellate tribunals made up of common law judges drawn from other
provinces, who have preferred to impose uniformally throughout the Dominion the English theory
of contributory negligence. Such decisions throw no light upon the doctrines of the civil law.
Elsewhere we find this practice embodied in legislation; for instance, section 2 of article 2398 of
the Code of Portugal reads as follows:
If in the case of damage there was fault or negligence on the part of the person injured or in the part
of some one else, the indemnification shall be reduced in the first case, and in the second case it
shall be appropriated in proportion to such fault or negligence as provided in paragraphs 1 and 2 of
section 2372.
And in article 1304 of the Austrian Code provides that the victim who is partly changeable with the
accident shall stand his damages in proportion to his fault, but when that proportion is incapable of
ascertainment, he shall share the liability equally with the person principally responsible. The
principle of proportional damages appears to be also adopted in article 51 of the Swiss Code. Even
in the United States in admirality jurisdictions, whose principles are derived from the civil law,
common fault in cases of collision have been disposed of not on the ground of contradictor
negligence, but on that of equal loss, the fault of the one part being offset against that of the other.
(Ralli vs. Troop, 157 U. S. 386; 97.)
The damage of both being added together and the sum equally divided, a decree is entered in favor
of the vessel sustaining the greater loss against the other for the excess of her damages over one-
half of the aggregate sum. (The Manitoba, 122 U. S., 97)
Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code of
Commerce, article 827, makes each vessel for its own damage when both are the fault; this
provision restricted to a single class of the maritime accidents, falls for short of a recognition of the
principle of contributory negligence as understood in American Law, with which, indeed, it has
little in common. This is a plain from other articles of the same code; for instance, article 829,
referring to articles 826, 827, and 828, which provides: "In the cases above mentioned the civil
action of the owner against the person liable for the damage is reserved, as well as the criminal
liability which may appear."
The rule of the common law, a hard and fast one, not adjustable with respects of the faults of the
parties, appears to have grown out the original method of trial by jury, which rendered difficult a
nice balancing of responsibilities and which demanded an inflexible standard as a safeguard against
too ready symphaty for the injured. It was assumed that an exact measure of several concurring
faults was unattainable.
The reason why, in cases of mutual concurring negligence, neither party can maintain an action
against the other, is, not the wrong of the one is set off against the wrong of the other; it that the law
can not measure how much of the damage suffered is attributable to the plaintiff's own fault. If he
were allowed to recover, it might be that he would obtain from the other party compensation for
hiss own misconduct. (Heil vs. Glanding, 42 Penn. St. Rep., 493, 499.)
The parties being mutually in fault, there can be no appointment of damages. The law has no scales
to determine in such cases whose wrongdoing weighed most in the compound that occasioned the
mischief. (Railroad vs. Norton, 24 Penn. St. 565, 469.)
Experience with jury trials in negligence cases has brought American courts to review to relax the
vigor of the rule by freely exercising the power of setting aside verdicts deemed excessive, through
the device of granting new trials, unless reduced damages are stipulated for, amounting to a partial
revision of damages by the courts. It appears to us that the control by the court of the subject matter
may be secured on a moral logical basis and its judgment adjusted with greater nicety to the merits
of the litigants through the practice of offsetting their respective responsibilities. In the civil law
system the desirable end is not deemed beyond the capacity of its tribunals.
Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the
stress and counter stress of novel schemers of legislation, we find the theory of damages laid down
in the judgment the most consistent with the history and the principals of our law in these Islands
and with its logical development.
Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered
immediate causes of the accident. The test is simple. Distinction must be between the accident and
the injury, between the event itself, without which there could have been no accident, and those acts
of the victim not entering into it, independent of it, but contributing under review was the
displacement of the crosspiece or the failure to replace it. this produced the event giving occasion
for damages — that is, the shinking of the track and the sliding of the iron rails. To this event, the
act of the plaintiff in walking by the side of the car did not contribute, although it was an element of
the damage which came to himself. Had the crosspiece been out of place wholly or partly thorough
his act of omission of duty, the last would have been one of the determining causes of the event or
accident, for which he would have been responsible. Where he contributes to the principal
occurrence, as one of its determining factors, he can not recover. Where, in conjunction with the
occurrence, he contributes only to his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his
own imprudence.
Accepting, though with some hesitation, the judgment of the trial court, fixing the damage incurred
by the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United States money, we deduct
therefrom 2,500 pesos, the amount fairly attributable to his negligence, and direct judgment to be
entered in favor of the plaintiff for the resulting sum of 2,500 pesos, with cost of both instances, and
ten days hereafter let the case be remanded to the court below for proper action. So ordered.
Arellano, C.J. Torres and Mapa, JJ., concur.
Separate Opinions
WILLARD, J., dissenting:
57
The knowledge which the plaintiff had in regard to the condition of the track is indicated by his Q. And the accident took place at that point where you believed it to be so dangerous?
own evidence. He testified, among other things, as follows:
A. Yes, sir.
Q. Now, describe the best you can the character of the track that ran from the place where you
loaded the irons from the barge up to the point where you unloaded them on the ground. Q. But you knew it was dangerous?

A. — Well, it was pretty bad character. A. Why certainly, anybody could see it; but a workingman had to work in those days or get
arrested for a vag here in Manila.
xxx xxx xxx
The court below, while it found that the plaintiff knew in a general way of the bad condition of the
Q. And you were familiar with the track before that its construction? track, found that he was not informed of the exact cause of the accident, namely, the washing away
of the large crosspiece laid upon the ground or placed upon the posts as the foundation upon which
A. Familiar with what? the stripers rested. This finding of fact to my mind is plainly and manifestly against the weight of
the evidence. Ellis, a witness for the plaintiff, testified that on the morning of the accident he called
Q. Well, you have described it here to the court. the attention of McKenna, the foreman, to the defective condition of the track at his precise point
where the accident happened. His testimony in part is as follows:
A. Oh, yes; I knew the condition of the track.
A. I called Mr. McKenna. I showed him the track and told him I didn't think it was safe
Q. You knew its conditions as you have described it here at the time you were working around working, and that if he didn't fix it he was liable to have an accident; I told him I thought if he put
there? fish plates on it would it. He said, you keep on fishing around here for fish plates and you will be
fishing for another job the first thing you know." He says, "You see to much."
A. Yes, sir.
xxx xxx xxx
xxx xxx xxx
Q. Who else was present at the time you had this conversation with Mr. McKenna?
Q. And while operating it from the side it was necessary for you to step from board to board on
the cross-ties which extended out over the stringers? A. Well, at that conversation as far as I can remember, we were all walking down the track and
I know that McCoy and Mr. Blakes was along at the time. I remember them two, but we were all
A. Yes, sir. walking down the track in a bunch, but I disremember them.

Q. And these were very of irregular shape, were they not? xxx xxx xxx

A. They were in pretty bad condition. Q. Was that the exact language that you used, that you wanted some fish plates put on?

xxx xxx xxx A. No, sir: I told him to look at that track. I says get some fish plates. I says if there was any fish
plates we would fix that.
Q. And it was not safe to walk along on the outside of these crosspieces?
Q. What did the fish plates have to do with that?
A. It was safe if the car stayed on the track. We didn't try to hold the load on. We tried to hold
the car back, keep it from going too fast, because we knew the track was in bad condition just here, A. It would have strengthened that joint.
and going down too fast we could be liable to run off most any time.
Q. Why didn't you put the 8 by 8 which was washed crossways in place?
Q. You knew the track was in bad condition when you got hold?
A. That would have been taken the raising of the track and digging out along this upright piece and
A. Sure, it was in bad condition. then putting it up again.

xxx xxx xxx The plaintiff himself testified that he was present with Ellis at the time this conversation was had
with McKenna. It thus appears that on the morning in question the plaintiff and McKenna were

58
standing directly over the place where the accident happened later in the day. The accident was
caused, as the court below found, by the washing away or displacement of the large 8 by 8 piece of
timber. This track was constructed as all other tracks are, all of it open work, with no floor over the
ties, and of course see the ground and the entire construction of the road, including these large 8 by
8 pieces, the long stringers placed thereon, the ties placed on these stringers, and the rails placed on
the ties. The plaintiff himself must have seen that the 8 by 8 piece of timber was out of place.
If the testimony of the plaintiff's witnesses is to be believed, the displacement was more markedly
apparent even than it would appear from the testimony of the defendant's witnesses. According to
the plaintiff's witnesses, the water at high tide reached the place in question and these 8 by 8 pieces
were therefore not laid upon the ground but were placed upon posts driven into the ground, the
height of the posts at this particular place being, according to the testimony of the plaintiff's
witnesses, from a foot to two feet and a half. As has been said, Ellis testified that the reason why
they did not put the 8 by 8 back in its place was because that would have required the raising up of
the track and digging out along this upright piece and then putting it up again.
It conclusively appears from the evidence that the plaintiff, before the accident happened, knew the
exact condition of the track and was informed and knew of the defect which caused the accident.
There was no promise on the part of McKenna to repair the track.
Under the circumstances the plaintiff was negligent in placing himself on the side of the car where
he knew that he would be injured by the falling of the rails from the car when they reached this
point in the track where the two stringers were without any support of their ends. He either should
have refused to work at all or he should have placed himself behind the car, on the other side of it,
or in front of it, drawing it with a rope. He was guilty of contributory negligence and is not entitled
to recover.
It is, said however, that contributory negligence on the part of the plaintiff in a case like this is no
defense under the law in force in these Islands. To this proposition I can not agree. The liability of
the defendant is based in the majority opinion upon articles 1101 and 1103 of the Civil Code.
In order to impose such liability upon the defendant, it must appear that its negligence caused the
accident. The reason why contradictory negligence on the part of the plaintiff is a defense in this
class of cases is that the negligence of the defendant did not alone cause the accident. If nothing but
that negligence had existed, the accident would not have happened and, as I understand it, in every
case in which contradictory negligence is a defense it is made so because the negligence of the
plaintiff is the cause of the accident, to this extent, that if the plaintiff had not been negligent the
accident would not have happened, although the defendant was also negligent. In other words, the
negligence of the defendant is not alone sufficient to cause the accident. It requires also the
negligence of the plaintiff.
There is, so far as I know, nothing in the Civil Code relating to contributory negligence. The rule of
the Roman law was: "Quod quis ex culap sua damnum sentit, no intelligitur damnum sentire."
(Digest, book, 50, tit. 17, rule 203.)
The partidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him through his own fault,
and that he can not demand reparation therefor from another. (Law 25, tit. 5, partida 3.)
And they even said that when a man received an injury through his own acts, the grievance should
be against himself and not against another. (Law 2, tit. 7, partida 2.)
In several cases in the supreme court of Spain the fact has been negligence that the plaintiff was
himself guilty of negligence, as in the civil judgments of the 4th of June, 1888, and of the 20th of
February, 1887, and in the criminal judgments of the 20th of February 1888, the 90th of March,
1876, and the 6th of October, 1882. These cases do not throw much light upon the subject. The
judgment of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is, however, directly in point. In
that case the supreme court of Spain said:
According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a
source of obligation when between such negligence and the injury thereby caused there exists the
relation of cause and effect; but in the injury caused should not be the result of acts or omissions of
a third party, the latter has no obligation to repair the same, even though such acts or omissions
were imprudent or unlawful, and much less when it is shown that the immediate cause of the injury
was the negligence of the injured person party himself.
Found the reasons above stated, and the court below having found that the death of the deceased
was due to his own imprudence, and not therefore due to the absence of a guard at the grade
crossing where the accident occurred, it seems clear that court in acquitting the railroad company of
the complaint filed by the widow did not violate the provisions of the aforesaid article of the Civil
Code.
For the same reason, although the authority granted to the railroad company to open the grade
crossing without a special guard was nullified by the subsequent promulgation of the railroad police
law and the regulations for the execution of the same, the result would be identical, leaving one of
the grounds upon which the judgment of acquittal is based, to wit, that the accident was caused by
the imprudence of the injured party himself, unaffected.
It appears that the accident in this case took place at a grade crossing where, according to the claim
of the plaintiff, it was the duty of the railroad company to maintain husband was injured by a train
at this crossing, his negligence contributing to the injury according to the ruling of the court below.
This judgment, then, amounts to a holding that a contributory negligence is a defense according to
the law of Spain. (See also judgment of the 21st of October, 1903, vol. 96 p. 400, Jurisprudencia
Civil.)
Although in the Civil Code there is no express provision upon the subject, in the Code of
Commerce there is found a distinct declaration upon it in reference to damages caused by collission
at sea. Article 827 of the Code of Commerce is as follows:
If both vessels may be blamed for the collission, each one shall for liable for his own damages, and
both shall jointly responsible for the loss and damages suffered to their cargoes.
That article is an express recognition of the fact that in collision cases contributory negligence is a
defense,
59
I do not think that this court is justified in view of the Roman law, of the provisions of the Partidas,
of the judgment of March 7, 1902, of article 827 of the Code of Commerce, and in the absence of
any declaration upon the subject in the Civil Code, in saying that it was the intention rule
announced in the majority opinion, a rule dimetrically opposed to that put in force by the Code of
Commerce.

The chief, is not the only, reason stated in the opinion for adopting the rule that contradictory
negligence is not a defense seems to be that such is the holding of the later French decisions.

As to whether, if any liability existed in this case, it would be necessary in accordance with the
provisions of the Penal Code, or primary, in accordance with the provision of the Civil Code, I
express no opinion.

The judgment should, I think, be reversed and the defendant acquitted of the complaint.

60