OBLICON REPORTING:

Negligence- Article 1172, 1173

(Cases 30, 31, 32 & 34)
By:
Nicole Ann Ponce

[G.R. No. L-43182. November 25, 1986.]

MARCIAL F. SAMSON, City Mayor of Caloocan City, THE CITY
TREASURER, THE CITY AUDITOR, both of Caloocan City, and
HERMOGENES LIWANAG, petitioners, vs. THE HONORABLE COURT OF
APPEALS, CFI-RIZAL AND FELICIANO C. TALENS, respondents.

FACTS:
AO No. 3, issued by Mayor Samson of Caloocan City, summarily terminated
the services of respondent Talens who held position of Asst. Sec. to the Mayor
on the ground of lack and loss of confidence and appointing Liwag to the
position.
RA No. 2260 declares the position of secretaries to city mayors non-competitive
and this was interpreted by Mayor Samson as to include the position of Asst.
Sec. to the Mayor.
ISSUE:
Legality of Administrative Order No. 3
HELD:
Secretary to the Mayor and Asst. Secretary to the Mayor are two separate
and distinct positions. One is of higher category and rank than the other. The
functions strictly attributable to a secretary, is not automatically vested or

STATUTORY CONSTRUCTION; CIVIL SERVICE LAW; EXCEPTIONS

UNDER SECTION 5 THEREOF STRICTLY CONSTRUED.
As a general rule, position in all branches, subdivisions and
instrumentalities of the government, including those in government
owned or controlled corporations, belong to the competitive
service. The only exceptions are those expressly declared by law to
be in the non-competitive service and those which are policydetermining, primarily confidential or highly technical in
nature. (Section 3, R.A. 2260, as amended by R.A. No. 6040)

Under the rules of statutory construction, exceptions, as a general

rule; should be strictly, but reasonably construed; they extend only
so far as their language fairly warrants, and all doubts should be
resolved in favor of the general provisions rather than the exception.
Where a general rule is established by statute with exceptions, the court
will not curtail the former nor add to the latter by implication . . .
The exceptions provided for in Section 5 of Republic Act No. 2260, as
amended should be, therefore, strictly construed. It follows then that on
this general governing principle, the position of assistant secretary
to the City Mayor of Caloocan City should be considered as
belonging to the non-competitive service.

2. ADMINISTRATIVE LAW; SECTION 5(F), EPUBLIC ACT NO. 2260;

POSITIONS OF SECRETARY TO THE MAYOR AND ASSISTANT
SECRETARY TO THE MAYOR DISTINGUISHED AND EXPLAINED.
It is not the powers and duties exercised and discharged by the
Assistant Secretary to the Mayor as may be delegated and
assigned by the Mayor that makes the position of Assistant
Secretary primarily confidential.
While duties possibly involving confidential matters are
sometimes handled by the Assistant Secretary to the Mayor, this
does not necessarily transform the nature of the position
itself as one that is primarily and highly confidential

It should be stressed that the position of Secretary to the Mayor and

that of Assistant Secretary to the Mayor are two separate and distinct
positions. While both individuals may be called "secretary",
nevertheless, one is certainly of a higher category and rank than
the other with the added distinction that a Secretary must enjoy
the confidence of the Mayor.
However, the position of Assistant Secretary being of a lower rank,
need not carry the requisites attaching to the primarily confidential
position of the actual Secretary to the Mayor. Moreover, if it was the
intention of Congress to include the Assistant Secretary within the
purview of Section 5(f) of R.A. No. 2260, as amended, so that Assistant
Secretaries are could have been easily worded "secretaries and their
assistance".

What petitioners fail to consider is that an "assistant

secretary", although described as secretary, technically differs
in function from the "Secretaries". An "assistant" merely
helps, aids or serves in a subordinate capacity to the
person who is actually clothed with all the duties and
responsibilities Of "secretary".
Needless to say, the functions strictly attributable to a
"secretary" and which would repose on such person the trust
and confidence of the employer, is not automatically vested
or transferred to as "assistant secretary", because the
latter simply assists or aids the former in the accomplishment
of his duties.

[G.R. No. L-25906. May 28, 1970.]

PEDRO D. DIOQUINO, plaintiff-appellee, vs. FEDERICO
LAUREANO,
AIDA DE LAUREANO and JUANITO LAUREANO, defendantsappellants.

FACTS:

Atty. Dioquino, a practicing lawyer, went to the office of the MVO, Masbate to
register his car. He asked Laureano to introduce him to one of the clerks in the
office who could facilitate the registration and the request was attended to.
Laureano rode on the car of Atty. Dioquino. While about to reach their destination,
the car was stoned by some mischievous boys and the windshield broke.
Laureano refused to file any charges against the boy and his parents because
he thought that stone-throwing was accidental and was due to force
majeure. He refused to pay the damage caused and challenged the case for
adjudication. The plaintiff tried to convince the defendant and even the latters
wife to settle amicably by paying the damages but the defendant refused.
ISSUE:
Whether or not there was fortuitous event and Laureano is liable for the damages.

RULING:

The express language of Article 1174 of the Civil Code states that except in
cases expressly specified by the law, or when it is otherwise declared
by stipulation, or when the nature of the obligation requires the
assumption of risk, no person shall be liable for those events which
could not be foreseen, which, though foreseen were inevitable.
Authorities of repute are in agreement, more specifically concerning on
obligation arising from contract that
some
extraordinary
circumstance
independent of the will of the obligor, or of his employees, is an
essential element of a caso fortuito. If it could be shown that such indeed was the
case, liability is ruled out. There is no requirement of diligence beyond what
human care and foresight can provide. The throwing of the stone
by the child was clearly unforeseen or if foreseen, was inevitable. Hence,
the law being what it is, such a belief on the part of defendant Laureano was
justified and he shall not be held liable for the damages caused to the car

CIVIL LAW; OBLIGATIONS AND CONTRACTS; FORTUITOUS EVENT;

NO
RESPONSIBILITY THEREFOR.
The express language of Article 1174 of the present Civil Code
which is a restatement of Article 1105 of the Old Civil Code,
except for the addition of the nature of an obligation requiring the
assumption of risk reads thus: "Except in cases expressly
specified by law, or when it is otherwise declared by stipulation,
or when the nature of the obligation requires the assumption of
risk, no person shall be responsible for those events which
could not be foreseen, or which though foreseen were
inevitable.

2. BASIS.
Its basis, as Justice Moreland stressed, is the Roman law
principle major casus est, cui humana infirmintas resistere non
potest.
3. CONCERNING OBLIGATION ARISING FROM CONTRACT.
Authorities of repute are in agreement, more specifically considering
an obligation arising from contract "that some extraordinary
circumstance independent of the will of the obligor, or of his
employees, is an essential element of a caso fortuito." If it could
be shown that such indeed was the case, liability is ruled out. There is
no requirement of "diligence beyond what human care and foresight can
provide."

4. INSTANT CASE.
Where, as in the instant case, the car borrowed by
defendant from plaintiff and driven by the latter's driver and
with defendant as the sole passenger while on the way to the
P.C. Barracks at Masbate, was stoned by some mischievous
boys and its windshield was broken, said defendant should not
be liable for such damages for what happened was clearly
unforeseen. It was fortuitous event resulting in a loss which
must be borne by the owner of the car. An element of
reasonableness in the law would be manifestly lacking
if, on the circumstances as thus disclosed, legal
responsibility could be imputed to an individual in the
situation of defendant Laureano. Article 1174 of the Civil
Code guards against the possibility of its being visited with

5. ARTICLE 1174 PRESENT CIVIL CODE CONSTRUED.

The very wording of Article 1174, Civil Code of the
Philippines dispels any doubt that what is therein
contemplated is the resulting liability even if caused by a
fortuitous event where the party charged may be
considered as having assumed the risk incident in
the nature of the obligation to be performed.

6. EXPLAINED.
Caso fortuito or force majeure (which in law are identical in so far as
they exempt an obligor from liability) by definition, are extraordinary
events not foreseeable or avoidable, events that could not be
foreseen, or which, though foreseen were or anticipated, as is
commonly believed, but it must be one that is 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 dificilo
mas onerosa la accion diligente del presente ofensor."

7. RIGHT TO DAMAGES FOR WRONG INCLUSION OF PARTIES

IN COMPLAINT; NOT ALLOWED IN INSTANT CASE.
As regards appellant's position to have plaintiff pay
damages for having joined appellant's wife and father-in-law
in the complaint, We are not disposed to view the matter
thus: "Considering the equities of the situation, plaintiff
having suffered a pecuniary loss which, while
resulting from a fortuitous event, perhaps would not
have occurred at all had not defendant Federico
Laureano borrowed his car, we feel that he is not to be
penalized further by his mistaken view of the law including
them in his complaint.

[G.R. No. L-21486. May 14, 1966.]

LA MALLORCA and PAMPANGA BUS COMPANY, petitioners, vs.
VALENTIN DE JESUS, MANOLO TOLENTINO and COURT OF
APPEALS, respondents.

FACTS:
Mariano Beltran and his family rode a bus owned by
petitioner. Upon reaching their desired destination, they
alighted from the bus. But Mariano returned to get their
baggage. His youngest daughter followed him without his
knowledge. When he stepped into the bus again, it
suddenly accelerated. Marianos daughter was found
dead. The bus ran over her.
ISSUE:
Whether the liability of a common carrier extends even

HELD:
The relation of carrier and passenger does not cease
at the moment the passenger alights from the
carriers vehicle at a place selected by the carrier at
the point of destination, but continues until the
passenger has had a reasonable time or
reasonable opportunity to leave the current premises.

1. DAMAGES, ACCIDENT CAUSED BY MECHANICAL DEFECT; LIABILITY OF

OWNER OF VEHICLE.
Where the cause of the blowout which caused the accident was
known in that the inner tube of the left front tire was pressed between
the inner circle of the left wheel and the rim which had slipped out of
the wheel, a mechanical defect of the conveyance or a fault in
equipment which was easily discoverable if the bus had been subjected
to a more thorough or rigid check-up before it took to the road, the
owner of the vehicle is liable for the accident.
2. MORAL DAMAGES; COMMON CARRIER; BREACH OF CONTRACT.
In this jurisdiction moral damages are recoverable by reason of
the death of a passenger caused by the breach of contract of a
common carrier, as provided in Article 1764, in relation to Article
2206, of the Civil Code.

[G.R. No. 159270. August 22, 2005.]

PHILIPPINE NATIONAL CONSTRUCTION CORPORATION , petitioner,
vs . HON. COURT OF APPEALS, RODRIGO ARNAIZ, REGINA LATAGAN,
RICARDO GENERALAO and PAMPANGA SUGAR DEVELOPMENT
COMPANY, INC., CORPORATION, respondents.
FACTS:

On 18 November 1985, petitioner Philippine National

Construction Corporation (PNCC) executed a contract of lease
with private respondents, stipulating to pay rent for the use of
land, at the monthly rate of P 20,000.00 payable yearly in
advance.
The said land is to be used by petitioner as site for a rock
crushing plant. The term of lease is for five years, commencing on
the date of issuance of an industrial clearance by the Ministry of
Human Settlements (Ministry).
On 7 January 1986 PNCC obtained a Temporary Use Permit from
the Ministry for the proposed rock crushing project. Nine days later

In reply, PNCC argued that the contract must

commence on the date of issuance by the Ministry of an
industrial clearance in their favor. It also expressed its
desire to terminate the contract it executed with
respondents, due to financial, as well as technical
difficulties.
Respondents refused to accede to PNCCs request for
pre termination and on 19 May 1986,instituted an action
against PNCC for Specific Performance with
Damages. Trial court ruled in favor of respondents and
ordered PNCC to pay rentals for two years, with legal
interests plus attorneys fees. The Court of Appeals
affirmed the decision of the trial court upon appeal by

ISSUES:
:(1) WON contract commences on the date of issuance of
clearance by Ministry;
(2) WON PNCC should be released from its contract with
respondents due to unforeseen events and causes
beyond its control;
(3) WON sum of money ordered to be paid by the court is
excessive and;
(4) WON PNCC was deprived of right to due process.

HELD:
Petition denied.
RATIO:
(1)PNCC is estopped from claiming that Lease Contract commences on the date of issuance of
clearance by Ministry, because in its letter to respondents, PNCC recognized its obligation to
pay rentals counted from the date the temporary permit was issued.
(2)PNCC cites Art. 1266, asserting that it should be released from the obligatory force of the
contract because its purpose did not materialize due to unforeseen events and causes beyond its
control. However, this article applies only to obligations to do and not to give, while
obligation arising out of said contract is an obligation to do. Further, PNCC executed the
contract with open eyes on the deteriorating conditions of the country and mere pecuniary
inability to fulfill an engagement does not discharge a contractual obligation
The unforeseen events and causes beyond its control cited by PNCC are not the legal and
physical impossibilities contemplated in Art. 1266.
(3) PNCC asserts that it was not able to use and enjoy the land and is not entitled to pay damages
cited by the court. However, respondents suffered damages because of its inability to use the
premises. Respondents are entitled to indemnification under Art. 1659 of the Civil Code.
(4) PNCC was not deprived of due process because trial court granted several postponements to
petitioner before it waived the presentation of evidence in petitioners behalf.

1.REMEDIAL LAW; CIVIL PROCEDURE; APPEAL BY CERTIORARI; ONLY

QUESTIONS OF LAW MAY BE RAISED IN THE SUPREME COURT.
Under Rule 45 of the Rules of Court, only questions of law
may be raised in this Court, and while there are exceptions to
the rule, no such exception is present in this case. On this ground
alone, the petition is destined to fail.
2.CIVIL LAW; QUASI-DELICT; ELEMENTS.
There are three elements of a quasi-delict:
(a)damages suffered by the plaintiff;
(b) fault or negligence of the defendant, or some other person
for whose acts he must respond;
(c) the connection of cause and effect between the fault or
negligence of the defendant and the damages incurred by the
plaintiff.

3. NEGLIGENCE; ELUCIDATED.
Negligence is the omission to do something which
a reasonable man, guided by those considerations
which ordinarily regulate the conduct of human
affairs, would do, or the doing of something which a
prudent and reasonable man would do. It also refers to
the conduct which creates undue risk of harm to another,
the failure to observe that degree of care, precaution and
vigilance that the circumstance justly demand, whereby
that other person suffers injury.

4. TEST TO DETERMINE THE EXISTENCE THEREOF.

The test by which to determine the existence of negligence in a particular case may be stated
as follows: Did the defendant in doing the alleged negligent act use that reasonable care and
caution which an ordinarily prudent person would have used in the same situation? If not, then he
is guilty of negligence.
The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of
the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not
determined by reference to the personal judgment of the actor in the situation before him.
The law considers what would be reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that. The test for determining whether a
person is negligent in doing an act whereby injury or damage results to the person or property of
another is this: could a prudent man, in the position of the person to whom negligence is
attributed, foresee harm to the person injured as a reasonable consequence of the course actually
pursued?
If so, the law imposes a duty on the actor to refrain from that course or to take precautions to
guard against its mischievous results, and the failure to do so constitutes negligence. Reasonable
foresight of harm, followed by the ignoring of the admonition born of this provision, is always
necessary before negligence can be held to exist. Justice and due process.

5. LIABILITY OF JOINT TORTFEASORS IS JOINT AND SOLIDARY.

PASUDECO's negligence in transporting sugarcanes without proper
harness/straps, and that of PNCC in removing the emergency
warning devices, were two successive negligent acts which werethe
direct and proximate cause of Latagan's injuries. As such, PASUDECO
and PNCC arejointly and severally liable. As the Court held in the
vintage case of Sabido v. Custodio: 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. . . .

6. AWARD OF DAMAGES MITIGATED BY THE CONTRIBUTORY NEGLIGENCE OF

THE INJURED PARTY.
Anent respondent Arnaiz's negligence in driving his car, both the trial court and
the CA agreed that it was only contributory, and considered the same inmitigating
the award of damages in his favor as provided under Article 2179 of the New Civil
Code. Contributory negligence is conduct on the part of the injured party,
contributing as a legal cause to the harm he has suffered, which falls below the
standard to which he is required to conform for his own protection. Even the
petitioner itself described Arnaiz's negligence as contributory. In its Answer to the
complaint led with the trial court, the petitioner asserted that "the direct and
proximate cause of the accident was the gross negligence of PASUDECO personnel
which resulted in the spillage of sugarcane and the apparent failure of the
PASUDECO workers to clear and mop up the area completely, coupled with the
contributory negligence of Arnaiz in driving his car at an unreasonable speed."

7.REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; WHEN A PARTY

ADOPTS A CERTIORARI THEORY IN THE TRIAL COURT, HE WILL
NOT BE PERMITTED TO CHANGE HIS THEORY ON APPEAL.
The petitioner changed its theory in the present recourse,
and now claims that the proximate and immediate cause of the
mishap in question was the reckless imprudence or gross
negligence of respondent Arnaiz. Such a change of theory
cannot be allowed. When a party adopts a certain theory in the
trial court, he will not be permitted tochange his theory on
appeal, for to permit him to do so would not only be unfair to
the other party but it would also be offensive to the basic rules
of fair play.