G.R. No. L-12986
March 31, 1966
THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA ONG,
petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondents-appellees.
Ross, Selph, Carrascoso and Janda for the respondents.
Bernabe Africa, etc. for the petitioners.
MAKALINTAL., J.:
This case is before us on a petition for review of the decision of the Court of Appeals, which affirmed that of the
Court of First Instance of Manila dismissing petitioners' second amended complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that in the afternoon
of March 18, 1948 a fire broke out at the Caltex service station at the corner of Antipolo street and Rizal
Avenue, Manila. It started while gasoline was being hosed from a tank truck into the underground storage, right
at the opening of the receiving tank where the nozzle of the hose was inserted. The fire spread to and burned
several neighboring houses, including the personal properties and effects inside them. Their owners, among
them petitioners here, sued respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of
the station and the second as its agent in charge of operation. Negligence on the part of both of them was
attributed as the cause of the fire.
The trial court and the Court of Appeals found that petitioners failed to prove negligence and that respondents
had exercised due care in the premises and with respect to the supervision of their employees.
The first question before Us refers to the admissibility of certain reports on the fire prepared by the Manila
Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of the Philippines. Portions of
the first two reports are as follows:
1. Police Department report: —
Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores was transferring gasoline
from a tank truck, plate No. T-5292 into the underground tank of the Caltex Gasoline Station located at the
corner of Rizal Avenue and Antipolo Street, this City, an unknown Filipino lighted a cigarette and threw the
burning match stick near the main valve of the said underground tank. Due to the gasoline fumes, fire suddenly
blazed. Quick action of Leandro Flores in pulling off the gasoline hose connecting the truck with the
underground tank prevented a terrific explosion. However, the flames scattered due to the hose from which the
gasoline was spouting. It burned the truck and the following accessorias and residences.
2. The Fire Department report: —
In connection with their allegation that the premises was (sic) subleased for the installation of a coca-cola and
cigarette stand, the complainants furnished this Office a copy of a photograph taken during the fire and which
is submitted herewith. it appears in this picture that there are in the premises a coca-cola cooler and a rack
which according to information gathered in the neighborhood contained cigarettes and matches, installed
between the gasoline pumps and the underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the history of
the gasoline station and what the chief of the fire department had told him on the same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence inadmissible.
This ruling is now assigned as error. It is contended: first, that said reports were admitted by the trial court
without objection on the part of respondents; secondly, that with respect to the police report (Exhibit V-Africa)
which appears signed by a Detective Zapanta allegedly "for Salvador Capacillo," the latter was presented as
witness but respondents waived their right to cross-examine him although they had the opportunity to do so;
and thirdly, that in any event the said reports are admissible as an exception to the hearsay rule under section
35 of Rule 123, now Rule 130.
The first contention is not borne out by the record. The transcript of the hearing of September 17, 1953 (pp.
167-170) shows that the reports in question, when offered as evidence, were objected to by counsel for each of
respondents on the ground that they were hearsay and that they were "irrelevant, immaterial and impertinent."
Indeed, in the court's resolution only Exhibits J, K, K-5 and X-6 were admitted without objection; the admission
of the others, including the disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did take the witness stand, he was not examined and he did
not testify as to the facts mentioned in his alleged report (signed by Detective Zapanta). All he said was that he
was one of those who investigated "the location of the fire and, if possible, gather witnesses as to the
occurrence, and that he brought the report with him. There was nothing, therefore, on which he need be
cross-examined; and the contents of the report, as to which he did not testify, did not thereby become
competent evidence. And even if he had testified, his testimony would still have been objectionable as far as
information gathered by him from third persons was concerned.
Petitioners maintain, however, that the reports in themselves, that is, without further testimonial evidence on
their contents, fall within the scope of section 35, Rule 123, which provides that "entries in official records made
in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made by a
public officer, or by another person specially enjoined by law to do so; (b) that it was made by the public officer
in the performance of his duties, or by such other person in the performance of a duty specially enjoined by
law; and (c) that the public officer or other person had sufficient knowledge of the facts by him stated, which
must have been acquired by him personally or through official information (Moran, Comments on the Rules of
Court, Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be considered here. Obviously the material facts recited in
the reports as to the cause and circumstances of the fire were not within the personal knowledge of the officers
who conducted the investigation. Was knowledge of such facts, however, acquired by them through official
information? As to some facts the sources thereof are not even identified. Others are attributed to Leopoldo
Medina, referred to as an employee at the gas station were the fire occurred; to Leandro Flores, driver of the
tank truck from which gasoline was being transferred at the time to the underground tank of the station; and to
respondent Mateo Boquiren, who could not, according to Exhibit V-Africa, give any reason as to the origin of
the fire. To qualify their statements as "official information" acquired by the officers who prepared the reports,
the persons who made the statements not only must have personal knowledge of the facts stated but must
have the duty to give such statements for record.1
The reports in question do not constitute an exception to the hearsay rule; the facts stated therein were not
acquired by the reporting officers through official information, not having been given by the informants pursuant
to any duty to do so.
The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine of res ipsa
loquitur should apply so as to presume negligence on the part of appellees. Both the trial court and the
appellate court refused to apply the doctrine in the instant case on the grounds that "as to (its) applicability ... in
the Philippines, there seems to he nothing definite," and that while the rules do not prohibit its adoption in
appropriate cases, "in the case at bar, however, we find no practical use for such doctrine." The question
deserves more than such summary dismissal. The doctrine has actually been applied in this jurisdiction, in the
case of Espiritu vs. Philippine Power and Development Co. (CA-G.R. No. 3240-R, September 20, 1949),
wherein the decision of the Court of Appeals was penned by Mr. Justice J.B.L. Reyes now a member of the
Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were loading grass between
the municipalities of Bay and Calauan, in the province of Laguna, with clear weather and without any wind
blowing, an electric transmission wire, installed and maintained by the defendant Philippine Power and
Development Co., Inc. alongside the road, suddenly parted, and one of the broken ends hit the head of the
plaintiff as he was about to board the truck. As a result, plaintiff received the full shock of 4,400 volts carried by
the wire and was knocked unconscious to the ground. The electric charge coursed through his body and
caused extensive and serious multiple burns from skull to legs, leaving the bone exposed in some parts and
causing intense pain and wounds that were not completely healed when the case was tried on June 18, 1947,
over one year after the mishap.
The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any specific act of
negligence, but the appellate court overruled the defense under the doctrine of res ipsa loquitur. The court
said:
The first point is directed against the sufficiency of plaintiff's evidence to place appellant on its defense. While it
is the rule, as contended by the appellant, that in case of noncontractual negligence, or culpa aquiliana, the
burden of proof is on the plaintiff to establish that the proximate cause of his injury was the negligence of the
defendant, it is also a recognized principal that "where the thing which caused injury, without fault of the injured
person, is under the exclusive control of the defendant and the injury is such as in the ordinary course of things
does not occur if he having such control use proper care, it affords reasonable evidence, in the absence of the
explanation, that the injury arose from defendant's want of care."
And the burden of evidence is shifted to him to establish that he has observed due care and diligence. (San
Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the name of res ipsa
loquitur (the transaction speaks for itself), and is peculiarly applicable to the case at bar, where it is
unquestioned that the plaintiff had every right to be on the highway, and the electric wire was under the sole
control of defendant company. In the ordinary course of events, electric wires do not part suddenly in fair
weather and injure people, unless they are subjected to unusual strain and stress or there are defects in their
installation, maintenance and supervision; just as barrels do not ordinarily roll out of the warehouse windows to
injure passersby, unless some one was negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the
leading case that established that rule). Consequently, in the absence of contributory negligence (which is
admittedly not present), the fact that the wire snapped suffices to raise a reasonable presumption of negligence
in its installation, care and maintenance. Thereafter, as observed by Chief Baron Pollock, "if there are any facts
inconsistent with negligence, it is for the defendant to prove."
It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the Supreme
Court, but we do not consider this a reason for not applying the particular doctrine of res ipsa loquitur in the
case at bar. Gasoline is a highly combustible material, in the storage and sale of which extreme care must be
taken. On the other hand, fire is not considered a fortuitous event, as it arises almost invariably from some act
of man. A case strikingly similar to the one before Us is Jones vs. Shell Petroleum Corporation, et al., 171 So.
447:
Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was leased to the
Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934, during the term of the lease,
while gasoline was being transferred from the tank wagon, also operated by the Shell Petroleum Corporation,
to the underground tank of the station, a fire started with resulting damages to the building owned by Jones.
Alleging that the damages to his building amounted to $516.95, Jones sued the Shell Petroleum Corporation
for the recovery of that amount. The judge of the district court, after hearing the testimony, concluded that
plaintiff was entitled to a recovery and rendered judgment in his favor for $427.82. The Court of Appeals for the
First Circuit reversed this judgment, on the ground the testimony failed to show with reasonable certainty any
negligence on the part of the Shell Petroleum Corporation or any of its agents or employees. Plaintiff applied to
this Court for a Writ of Review which was granted, and the case is now before us for decision.1äwphï1.ñët
In resolving the issue of negligence, the Supreme Court of Louisiana held:
Plaintiff's petition contains two distinct charges of negligence — one relating to the cause of the fire and the
other relating to the spreading of the gasoline about the filling station.
Other than an expert to assess the damages caused plaintiff's building by the fire, no witnesses were placed
on the stand by the defendant.
Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it established by the record
that the filling station and the tank truck were under the control of the defendant and operated by its agents or
employees. We further find from the uncontradicted testimony of plaintiff's witnesses that fire started in the
underground tank attached to the filling station while it was being filled from the tank truck and while both the
tank and the truck were in charge of and being operated by the agents or employees of the defendant,
extended to the hose and tank truck, and was communicated from the burning hose, tank truck, and escaping
gasoline to the building owned by the plaintiff.
Predicated on these circumstances and the further circumstance of defendant's failure to explain the cause of
the fire or to show its lack of knowledge of the cause, plaintiff has evoked the doctrine of res ipsa loquitur.
There are many cases in which the doctrine may be successfully invoked and this, we think, is one of them.
Where the thing which caused the injury complained of is shown to be under the management of defendant or
his servants and the accident is such as in the ordinary course of things does not happen if those who have its
management or control use proper care, it affords reasonable evidence, in absence of explanation by
defendant, that the accident arose from want of care. (45 C.J. #768, p. 1193).
This statement of the rule of res ipsa loquitur has been widely approved and adopted by the courts of last
resort. Some of the cases in this jurisdiction in which the doctrine has been applied are the following, viz.:
Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So.
731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v.
Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal force here. The gasoline station, with all its
appliances, equipment and employees, was under the control of appellees. A fire occurred therein and spread
to and burned the neighboring houses. The persons who knew or could have known how the fire started were
appellees and their employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable
inference that the incident happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1 Africa) the
following appears:
Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained of occupies a lot
approximately 10 m x 10 m at the southwest corner of Rizal Avenue and Antipolo. The location is within a very
busy business district near the Obrero Market, a railroad crossing and very thickly populated neighborhood
where a great number of people mill around t
until
gasoline
tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this constitute a
secondary hazard to its operation which in turn endangers the entire neighborhood to conflagration.
Furthermore, aside from precautions already taken by its operator the concrete walls south and west adjoining
the neighborhood are only 2-1/2 meters high at most and cannot avoid the flames from leaping over it in case
of fire.
Records show that there have been two cases of fire which caused not only material damages but desperation
and also panic in the neighborhood.
Although the soft drinks stand had been eliminated, this gasoline service station is also used by its operator as
a garage and repair shop for his fleet of taxicabs numbering ten or more, adding another risk to the possible
outbreak of fire at this already small but crowded gasoline station.
The foregoing report, having been submitted by a police officer in the performance of his duties on the basis of
his own personal observation of the facts reported, may properly be considered as an exception to the hearsay
rule. These facts, descriptive of the location and objective circumstances surrounding the operation of the
gasoline station in question, strengthen the presumption of negligence under the doctrine of res ipsa loquitur,
since on their face they called for more stringent measures of caution than those which would satisfy the
standard of due diligence under ordinary circumstances. There is no more eloquent demonstration of this than
the statement of Leandro Flores before the police investigator. Flores was the driver of the gasoline tank
wagon who, alone and without assistance, was transferring the contents thereof into the underground storage
when the fire broke out. He said: "Before loading the underground tank there were no people, but while the
loading was going on, there were people who went to drink coca-cola (at the coca-cola stand) which is about a
meter from the hole leading to the underground tank." He added that when the tank was almost filled he went
to the tank truck to close the valve, and while he had his back turned to the "manhole" he, heard someone
shout "fire."
Even then the fire possibly would not have spread to the neighboring houses were it not for another negligent
omission on the part of defendants, namely, their failure to provide a concrete wall high enough to prevent the
flames from leaping over it. As it was the concrete wall was only 2-1/2 meters high, and beyond that height it
consisted merely of galvanized iron sheets, which would predictably crumple and melt when subjected to
intense heat. Defendants' negligence, therefore, was not only with respect to the cause of the fire but also with
respect to the spread thereof to the neighboring houses.
There is an admission on the part of Boquiren in his amended answer to the second amended complaint that
"the fire was caused through the acts of a stranger who, without authority, or permission of answering
defendant, passed through the gasoline station and negligently threw a lighted match in the premises." No
evidence on this point was adduced, but assuming the allegation to be true — certainly any unfavorable
inference from the admission may be taken against Boquiren — it does not extenuate his negligence. A
decision of the Supreme Court of Texas, upon facts analogous to those of the present case, states the rule
which we find acceptable here. "It is the rule that those who distribute a dangerous article or agent, owe a
degree of protection to the public proportionate to and commensurate with a danger involved ... we think it is
the generally accepted rule as applied to torts that 'if the effects of the actor's negligent conduct actively and
continuously operate to bring about harm to another, the fact that the active and substantially simultaneous
operation of the effects of a third person's innocent, tortious or criminal act is also a substantial factor in
bringing about the harm, does not protect the actor from liability.' (Restatement of the Law of Torts, vol. 2, p.
1184, #439). Stated in another way, "The intention of an unforeseen and unexpected cause, is not sufficient to
relieve a wrongdoer from consequences of negligence, if such negligence directly and proximately cooperates
with the independent cause in the resulting injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153 S.W. 2nd
442.)
The next issue is whether Caltex should be held liable for the damages caused to appellants. This issue
depends on whether Boquiren was an independent contractor, as held by the Court of Appeals, or an agent of
Caltex. This question, in the light of the facts not controverted, is one of law and hence may be passed upon by
this Court. These facts are: (1) Boquiren made an admission that he was an agent of Caltex; (2) at the time of
the fire Caltex owned the gasoline station and all the equipment therein; (3) Caltex exercised control over
Boquiren in the management of the state; (4) the delivery truck used in delivering gasoline to the station had
the name of CALTEX painted on it; and (5) the license to store gasoline at the station was in the name of
Caltex, which paid the license fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa;
Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he denied that he directed one of his drivers
to remove gasoline from the truck into the tank and alleged that the "alleged driver, if one there was, was not in
his employ, the driver being an employee of the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It
is true that Boquiren later on amended his answer, and that among the changes was one to the effect that he
was not acting as agent of Caltex. But then again, in his motion to dismiss appellants' second amended
complaint the ground alleged was that it stated no cause of action since under the allegations thereof he was
merely acting as agent of Caltex, such that he could not have incurred personal liability. A motion to dismiss on
this ground is deemed to be an admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that the business
conducted at the service station in question was owned and operated by Boquiren. But Caltex did not present
any contract with Boquiren that would reveal the nature of their relationship at the time of the fire. There must
have been one in existence at that time. Instead, what was presented was a license agreement manifestly
tailored for purposes of this case, since it was entered into shortly before the expiration of the one-year period
it was intended to operate. This so-called license agreement (Exhibit 5-Caltex) was executed on November 29,
1948, but made effective as of January 1, 1948 so as to cover the date of the fire, namely, March 18, 1948.
This retroactivity provision is quite significant, and gives rise to the conclusion that it was designed precisely to
free Caltex from any responsibility with respect to the fire, as shown by the clause that Caltex "shall not be
liable for any injury to person or property while in the property herein licensed, it being understood and agreed
that LICENSEE (Boquiren) is not an employee, representative or agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be considered an independent
contractor. Under that agreement Boquiren would pay Caltex the purely nominal sum of P1.00 for the use of
the premises and all the equipment therein. He could sell only Caltex Products. Maintenance of the station and
its equipment was subject to the approval, in other words control, of Caltex. Boquiren could not assign or
transfer his rights as licensee without the consent of Caltex. The license agreement was supposed to be from
January 1, 1948 to December 31, 1948, and thereafter until terminated by Caltex upon two days prior written
notice. Caltex could at any time cancel and terminate the agreement in case Boquiren ceased to sell Caltex
products, or did not conduct the business with due diligence, in the judgment of Caltex. Termination of the
contract was therefore a right granted only to Caltex but not to Boquiren. These provisions of the contract show
the extent of the control of Caltex over Boquiren. The control was such that the latter was virtually an employee
of the former.
Taking into consideration the fact that the operator owed his position to the company and the latter could
remove him or terminate his services at will; that the service station belonged to the company and bore its
tradename and the operator sold only the products of the company; that the equipment used by the operator
belonged to the company and were just loaned to the operator and the company took charge of their repair and
maintenance; that an employee of the company supervised the operator and conducted periodic inspection of
the company's gasoline and service station; that the price of the products sold by the operator was fixed by the
company and not by the operator; and that the receipts signed by the operator indicated that he was a mere
agent, the finding of the Court of Appeals that the operator was an agent of the company and not an
independent contractor should not be disturbed.
To determine the nature of a contract courts do not have or are not bound to rely upon the name or title given it
by the contracting parties, should thereby a controversy as to what they really had intended to enter into, but
the way the contracting parties do or perform their respective obligations stipulated or agreed upon may be
shown and inquired into, and should such performance conflict with the name or title given the contract by the
parties, the former must prevail over the latter. (Shell Company of the Philippines, Ltd. vs. Firemens' Insurance
Company of Newark, New Jersey, 100 Phil. 757).
The written contract was apparently drawn for the purpose of creating the apparent relationship of employer
and independent contractor, and of avoiding liability for the negligence of the employees about the station; but
the company was not satisfied to allow such relationship to exist. The evidence shows that it immediately
assumed control, and proceeded to direct the method by which the work contracted for should be performed.
By reserving the right to terminate the contract at will, it retained the means of compelling submission to its
orders. Having elected to assume control and to direct the means and methods by which the work has to be
performed, it must be held liable for the negligence of those performing service under its direction. We think the
evidence was sufficient to sustain the verdict of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash invoices were
presented to show that Boquiren had bought said gasoline from Caltex. Neither was there a sales contract to
prove the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount of P2,000.00
collected by them on the insurance of the house. The deduction is now challenged as erroneous on the ground
that Article 2207 of the New Civil Code, which provides for the subrogation of the insurer to the rights of the
insured, was not yet in effect when the loss took place. However, regardless of the silence of the law on this
point at that time, the amount that should be recovered be measured by the damages actually suffered,
otherwise the principle prohibiting unjust enrichment would be violated. With respect to the claim of the heirs of
Ong P7,500.00 was adjudged by the lower court on the basis of the assessed value of the property destroyed,
namely, P1,500.00, disregarding the testimony of one of the Ong children that said property was worth
P4,000.00. We agree that the court erred, since it is of common knowledge that the assessment for taxation
purposes is not an accurate gauge of fair market value, and in this case should not prevail over positive
evidence of such value. The heirs of Ong are therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and respondents-appellees are held liable solidarily to
appellants, and ordered to pay them the aforesaid sum of P9,005.80 and P10,000.00, respectively, with
interest from the filing of the complaint, and costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala, Bengzon, J.P., Zaldivar and
Sanchez, JJ., concur.
Dizon, J., took no part.
G.R. No. L-87584 June 16, 1992
GOTESCO INVESTMENT CORPORATION, petitioner,
vs.
GLORIA E. CHATTO and LINA DELZA CHATTO, respondents.
DAVIDE. JR., J.:
Assailed in this petition for review under Rule 45 of the Rules of Court are both the Decision 1 promulgated on
27 July 1988 and the Resolution dated 14 March 1989 2 of the respondent Court of Appeals in CA-G.R. CV
No. 09699 which, respectively affirmed in toto the decision of Branch XXI of the Regional Trial Court of Cebu in
Civil Case No. R-22567 entitled "Gloria Chatto, et al. versus Gotesco Investment Corporation", and denied
petitioner's motion to reconsider the same.
The trial court ordered the defendant, herein petitioners to pay the plaintiff Lina Delza E. Chatto the sum of
P10,000.00 as moral damages and the plaintiff Gloria E. Chatto the sum of P49,050.00 as actual and
consequential damages, P75,000.00 as moral damages and P20,000.00 as attorney's fees, plus the cost of the
suit. These awards, except for the attorney's fees, were to earn interest at the rate of twelve per cent (12%) per
annum beginning from the date the complaint was filed, 16 November 1982, until the amounts were fully paid.
The antecedent facts, as found by the trial court and affirmed by the respondent Court, are summarized by the
latter in the challenged decision as follows:
The evidence shows that in the afternoon of June 4, 1982 plaintiff Gloria E. Chatto, and her 15-year old
daughter, plaintiff Lina Delza E. Chatto went to see the movie "Mother Dear" at Superama I theater, owned by
defendant Gotesco Investment Corporation. They bought balcony tickets but even then were unable to find
seats considering the number of people patronizing the movie. Hardly ten (10) minutes after entering the
theater, the ceiling of its balcony collapsed. The theater was plunged into darkness and pandemonium ensued.
Shocked and hurt, plaintiffs managed to crawl under the fallen ceiling. As soon as they were able to get out to
the street they walked the nearby FEU Hospital where they were confined and treated for one (1) day.
The next day, they transferred to the UST hospital. Plaintiff Gloria Chatto was treated in said hospital from June
5 to June 19 and plaintiff Lina Delza Chatto from June 5 to 11. Per Medico Legal Certificate (Exh, "C") issued
by Dr. Ernesto G. Brion, plaintiff Lina Delza Chatto suffered the following injuries:
Physical injuries:
Contusions:
forehead and drental region, scalp left with hematoma; chest anterior upper bilateral; back right, scapular
region; back, mid-portion, thoraco-lumbar regions, bilateral
Abrasions:
back lumbar region, horizontal, across midline, from left to right; hand right, palm, near wrist; hand left, index
finger, dorsum, proximal phalanx.
Conclusion, cerebral.
X-Ray — Skull; Thoraco-lumbar
region — All negative.
CONCLUSIONS
1. Physical injuries rioted on the subject.
2. That under normal condition in the absence of complication, said physical injuries will require medical
attendance and/or incapacitate the subject for a period of from two to four weeks.
On the other hand, the findings on plaintiff Gloria Chatto per Medico Legal Certificate (Exh. "D") of Dr. Brion are
as follows:
xxx xxx xxx
Physical injuries:
Lacerated wounds:
scalp vertex, running across suggittal line, from left to right, 3.0 cm sutured;
Contusion, forearm right, anterior aspect, upper third.
Abrasions:
Shoulder and upper third, arm right, posterior aspect, linear; backright, scapular region, two in number, linear;
elbow right, posterior aspect; forearm right, anterior aspect, middle third.
Concusion (sic), cerebral.
X-Ray — Skull — Negative.
Cervical spines Straightening of cervical spine, probably to muscular spasm.
CONCLUSIONS:
1. Physical injuries noted on subject.
2. That under normal condition, in the absence of complication, said physical injuries will require medical
attendance and/or incapacitate the subject for a period of from two to four weeks.
Due to continuing pain in the neck, headache and dizziness, plaintiff went to Illinois, USA in July 1982 for
further treatment (Exh "E"). She was treated at the Cook County Hospital in Chicago, Illinois. She stayed in the
U.S. for about three (3) months during which time she had to return to the Cook County Hospital five (5) or, six
(6) times.
Defendant tried to avoid liability by alleging that the collapse of the ceiling of its theater was done due to force
majeure. It maintained that its theater did not suffer from any structural or construction defect. (Exh. 1, 2, 3, 4,
& 5)3
In justifying its award of actual or compensatory and moral damages and attorney's fees, the trial court said:
It has been established thru the uncontradicted testimony of Mrs. Chatto that during the chaos and confusion
at the theater she lost a pair of earrings worth P2,500 and the sum of P1,000.00 in cash contained in her wallet
which was lost; and that she incurred the following expenses: P500.00 as transportation fare from Cebu City to
Manila on the first leg of her trip to the United States; P350.00 for her passport; and P46,978.00 for her
expense relative to her treatment in the United States, including the cost of a round-trip ticket (P11,798.00)
hospital and medical bills and other attendant expenses. The total is P51,328.00, which is more than the sum
of P49,050.00 claimed in the complaint, hence should be reduced accordingly.
The same testimony has also established that Mrs. Chatto contracted to pay her counsel the sum of
P20,000.00, which this court considers reasonable considering, among other things, the professional standing
of work (sic) involved in the prosecution of this case. Such award of attorney's fees is proper because the
defendant's omission to provide the plaintiffs proper and adequate safeguard to life and limb which they
deserved as patrons to (sic) its theater had compelled the plaintiffs to hire the services of a counsel, file this
case and prosecute it, thus incurring expenses to protect their interest.
The plaintiffs are entitled to moral damages, which are the direct and proximate result of the defendants gross
negligence and omission. Such moral damages include the plaintiffs' physical suffering, mental anguish, fright
and serious anxiety. On the part of Mrs. Chatto, who obviously suffered much more pain, anguish, fright and
anxiety than her daughter Lina Delza, such damages are compounded by the presence of permanent
deformities on her body consisting of a 6-inch scar on the head and a 2-inch scar on one arm. The court
believes that the sum of P75,000.00 for plaintiff Gloria E. Chatto and the sum of P10,000.00 for plaintiff Lina
Delza E. Chatto would be reasonable. 4
Petitioner submitted before the respondent Court the following assignment of errors:
I. THE LOWER COURT ERRED IN ADMITTING PATENTLY — INADMISSIBLE EVIDENCE PRESENTED BY
PLAINTIFF-APPELLEES AND IN GIVING LESS PROBATIVE VALUE TO PUBLIC DOCUMENTS AND
CERTIFICATIONS OF THE CONDITION OF THE BUILDING, PARTICULARLY THE CERTIFICATE OF
OCCUPANCY ISSUED BY THE CITY ENGINEER'S OFFICE OF MANILA.
II. THE LOWER COURT ERRED IN FINDING THAT "THE CEILING OF THE BALCONY COLLAPSED DUE
TO SOME STRUCTURAL CONSTRUCTION OR ARCHITECTURAL DEFECT," AND NOT DUE TO AN ACT
OF GOD OR FORCE MAJEURE.
III. THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT WAS GROSSLY NEGLIGENT IN
FAILING "TO CAUSE PROPER AND ADEQUATE INSPECTION MAINTENANCE AND UPKEEP OF THE
BUILDING." 5
In its decision, respondent Court found the appeal to be without merit. As to the first assigned error, it ruled that
the trial court did not err in admitting the exhibits in question in the light of the ruling in Abrenica vs. Gonda 6 on
waiver of objections arising out of failure to object at the proper time Thus:
Exh. "A", the letter dated June 9, 1982 of Tina Mojica of defendant-appellant to the Administrator of UST
Hospital expressing their willingness to guaranty the payment of the hospital bills of the plaintiffs-appellees was
not objected to in trial court for lack of authentication. It is too late to raise that objection on appeal.
Exhibits "B", "C", "D", "F" to "F-13" are the hospital records at FEU, UST and Cook County Hospital. It may be
true that the doctors who prepared them were not presented as witnesses. Nonetheless, the records will show
that counsel for defendant-appellant cross examined plaintiff-appellee Gloria Chatto on the matter especially
the content of Exhibits "F" to F-13", Consequently, defendant-appellant is estopped from claiming lack of
opportunity to verify their textual truth. Moreover, the record is full of the testimony of plaintiffs-appellees on the
injuries they sustained from the collapse of the ceiling of defendant-appellant's theater. Their existence is
crystal clear.
Exh. "E" is the flight coupon and passenger ticket (Northwest Orient) of plaintiff-appellee Gloria Chatto from the
Philippines to the U.S. (Manila-Chicago-Manila). Certainly, this is relevant evidence on whether or not she
actually travelled (sic) to the U.S. for further medical treatment. Defendant-appellant's contention that the best
evidence on the issue is her passport is off the mark. The best evidence rule applies only if the contents of the
writing are directly in issue. In any event, her passport is not the only evidence on the matter.
Exh. "G" is the summary of plaintiff-appellee Gloria Chatto's expenses in the U.S in her own handwriting.
Defendant-appellant's objection that it is self serving goes to the weight of the evidence. The truth of Exh. "G"
could be and should have been tested by cross examination. It cannot be denied however that such expenses
are within the personal knowledge of the witness.
Exh. "H" is the surgical neckwear worn by the plaintiff-appellee Gloria Chatto as part of her treatment in the
U.S. Defendant-appellant objects to its admission because it is self-serving. The objection is without merit in
view of the evidence on record that plaintiff-appellee Gloria Chatto sustained head injuries from the collapse of
the ceiling of defendant-appellant's theater. In fact, counsel for defendant-appellant cross examined the said
witness on the medical finding of Cook County Hospital that she was suffering from neck muscle spasm. (TSN,
April 17, 1984, p. 11) The wearing of a surgical neckwear has proper basis.
Exh. "I" is the photograph of plaintiff-appellee Gloria Chatto in the U.S. showing the use of her surgical
neckwear. Defendant-appellant objects to this exhibit its hearsay because the photographer was not presented
as a witness. The objection is incorrect. In order that photographs or pictures may be given in evidence, they
must be shown to be a true and faithful representation of the place or objects to which they refer. The
photographs may be verified either by the photographer who took it or by any person who is acquainted with
the object represented and testify (sic) that the photograph faithfully represents the object. (Moran, Comments
in the Rules of Court, Vol. V, 1980 ed., p. 80 citing New York Co vs. Moore, 105 Fed. 725) In the case at bar,
Exh. "I" was identified by plaintiff appellee Gloria Chatto. 7
As to the, other assigned errors, the respondent Court ruled:
The lower court did not also err in its finding that the collapse of the ceiling of the theater's balcony was due to
construction defects and not to force majeure. It was the burden defendant-appellant to prove that its theater
did not suffer from any structural defect when it was built and that it has been well maintained when the
incident occurred. This is its Special and Affirmative Defense and it is incumbent on defendant-appellant to
prove it. Considering the collapse of the ceiling of its theater's balcony barely four (4) years after its
construction, it behooved defendant-appellant to conduct an exhaustive study of the reason for the tragic
incident. On this score, the effort of defendant-appellant borders criminal nonchalance. Its witness Jesus Lim
Ong testified:
Atty. Barcelona:
Q By the way, you made mention a while ago that your staff of engineer and architect used to make round
inspection of the building under your construction the of these buildings is Gotesco Cinema 1 and 2, subject
matter of this case, and you also made a regular round up or inspection of the theater. Is that right?
A Yes, sir.
Q And do you personally inspect these buildings under your construction?
A Yes, whenever I can.
Q In the case of Gotesco Cinema 1 and 2, had you any chance to inspect this building?
A Yes, sir.
Q Particularly in the months of May and June of 1982?
A Yes, in that (sic) months.
Q Now, you said also that sometime in June 1982 you remember that one of these theaters.
Atty. Barcelona: continuing
particularly Superama 1 the ceiling had collapsed?
A Yes, sir.
Q Did you conduct an investigation?
A Yes, sir.
Q What was your finding?
A There was really nothing, I cannot explain. I could not give any reason why the ceiling collapsed.
Q Could it not be due to any defect of the plant?
Atty. Florido:
Already answered, Your Honor, he could not give any reason.
COURT:
Objection sustained.
Atty. Barcelona:
Q When that incident happened, did the owner Gotesco Investment Corporation went (sic) to you to call your
attention?
A Yes, sir.
Atty. Florido:
Your Honor, we noticed (sic) series of leading questions, but this time we object.
COURT:
Sustained.
Atty. Barcelona;
Q What did the owner of Gotesco do when the ceiling collapsed, upon knowing that one of the cinemas you
maintained collopsed?
A He asked for a thorough investigation.
Q And as a matter of fact as asked you to investigate?
A Yes, sir.
Q Did you come out with any investigation report.
A There was nothing to report.
Clearly, there was no authoritative investigation conducted by impartial civil and structural engineers on the
cause of the collapse of the theater's ceiling, Jesus Lim Ong is not an engineer, He is a graduate of
architecture from the St. Louie (sic) University in Baguio City. It does not appear he has passed the
government examination for architects. (TSN, June 14, 1985 p. 4) In fine, the ignorance of Mr. Ong about the
cause of the collapse of the ceiling of their theater cannot be equated, as an act, of God. To sustain that
proposition is to introduce sacrilege in our jurisprudence. 8
Its motion for reconsideration of the decision having been denied by the respondent Court, petitioner filed this
petition assailing therein the challenged decision on the following grounds:
1. The basis of the award for damages stems from medical reports issued by private physicians of local
hospitals without benefit of cross-examination and more seriously, xerox copies of medical findings issued by
American doctors in the United States without the production of originals, without the required consular
authentication for foreign documents, and without the opportunity for cross-examination.
2. The damage award in favor of respondents is principally, made depend on such unreliable, hearsay and
incompetent evidence for which an award of more than P150,000.00 in alleged actual, moral and I
"consequential" damages are awarded to the prejudice of the right of petitioner to due process. . . .
3. Unfortunately, petitioners evidence of due diligence in the care and maintenance of the building was not
seriously considered by the Court of Appeals, considering that frequent inspections and maintenance
precautions had to be observed by hired engineers of petitioner, which enjoys an unsullied reputation in the
business of exhibiting movies in a chain of movie houses in Metro Manila. 9
After the private respondents filed their Comment as required in the Resolution of 17 May 1989, this Court
resolved to give due course to the petition and required the parties to file their respective Memoranda.
Subsequently, private respondents, in a motion, prayed for leave to adopt their Comment as their
Memorandum, which this Court granted on 6 December 1989. Petitioner filed its Memorandum on 10 January
1990.
The petition presents both factual and legal issues. The first relates to the cause of the collapse of the ceiling
while the latter involves the correctness of the admission of the exhibits in question.
We find no merit in the petition.
The rule is well-settled that the jurisdiction of this Court in cases brought to it from the Court of Appeals is
limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive, 10 except
only where a case is shown as coming under the accepted exception. 11 None of the exceptions which this
Court has painstakingly summarized in several cases 12 has been shown to exist in this petition. Petitioner's
claim that the collapse of the ceiling of the theater's balcony was due to force majeure is not even founded on
facts because its own witness, Mr. Jesus Lim Ong, admitted that "he could not give any reason why the ceiling
collapsed." Having interposed it as a defense, it had the burden to prove that the collapse was indeed caused
by force majeure. It could not have collapsed without a cause. That Mr. Ong could not offer any explanation
does not imply force majeure. As early as eighty-five (85) years ago, this Court had the occasion to define
force majeure. In Pons y Compañia vs. La Compañia Maritima 13 this Court held:
An examination of the Spanish and American authorities concerning the meaning of force majeure shows that
the jurisprudence of these two countries practically agree upon the meaning of this phrase.
Blackstone, in his Commentaries on English Law, defines it as —
Inevitable accident or casualty; an accident produced by any physical cause which is irresistible; such as
lightning. tempest, perils of the sea, inundation, or earthquake; the sudden illness or death of a person. (2
Blackstone's Commentaries, 122; Story in Bailments, sec. 25.)
Escriche, in his Diccionario de Legislacion y Jurisprudencia, defines fuerza mayor as follows.
The event which we could neither foresee nor resist; as for example, the lightning stroke, hail, inundation,
hurricane, public enemy, attack by robbers; Vis major est, says Cayo, ea quae consilio humano neque
provideri neque vitari potest. Accident and mitigating circumstances.
Bouvier defines the same as —
Any accident due to natural cause, directly exclusively without human intervention, such as could not have
been prevented by any kind of oversight, pains and care reasonably to have been expected. (Law Reports, 1
Common Pleas Division, 423; Law Reports, 10 Exchequer, 255.)
Corkburn, chief justice, in a well considered English case (1 Common Pleas Division, 34, 432), said that were a
captain —
Uses all the known means to which prudent and experienced captains ordinarily have recourse, he does all
that can be reasonably required of him; and if, under such circumtances, he is overpowered by storm or other
natural agency, he is within the rule which gives immunity from the effects of such vis major.
The term generally applies, broadly speaking, to natural accidents, such as those caused by lightning,
earthquake, tempests, public enemy ,etc.
Petitioner could have easily discovered the cause of the collapse if indeed it were due to force majeure. To Our
mind, the real reason why Mr. Ong could not explain the cause or reason is that either he did not actually
conduct the investigation or that he is, as the respondent Court impliedly held, incompetent. He is not an
engineer, but an architect who had not even passed the government's examination. Verily, post-incident
investigation cannot be considered as material to the present proceedings. What is significant is the finding of
the trial court, affirmed by the respondent Court, that the collapse was due to construction defects. There was
no evidence offered to overturn this finding. The building was constructed barely four (4) years prior to the
accident in question. It was not shown that any of the causes denominates as force majeure obtained
immediately before or at the time of the collapse of the ceiling. Such defects could have been easily discovered
if only petitioner exercised due diligence and care in keeping and maintaining the premises. But as disclosed
by the testimony of Mr. Ong, there was no adequate inspection of the premises before the date of the accident.
His answers to the leading questions on inspection disclosed neither the exact dates of said. inspection nor the
nature and extent of the same. That the structural designs and plans of the building were duly approved by the
City Engineer and the building permits and certificate of occupancy were issued do not at all prove that there
were no defects in the construction, especially as regards the ceiling, considering that no testimony was
offered to prove that it was ever inspected at all.
It is settled that:
The owner or proprietor of a place of public amusement impliedly warrants that the premises, appliances and
amusement devices are safe for the purpose for which they are designed, the doctrine being subject to no
other exception or qualification than that he does not contract against unknown defects not discoverable by
ordinary or reasonable means. 14
This implied warranty has given rise to the rule that:
Where a patron of a theater or other place of public amusement is injured, and the thing that caused the injury
is wholly and exclusively under the control and management of the defendant, and the accident is such as in
the ordinary course of events would not have happened if proper care had been exercised, its occurrence
raises a presumption or permits of an inference of negligence on the part of the defendant. 15
That presumption or inference was not overcome by the petitioner.
Besides, even assuming for the sake of argument that, as petitioner vigorously insists, the cause of the
collapse was due to force majeure, petitioner would still be liable because it was guilty of negligence, which the
trial court denominated as gross. As gleaned from Bouvier's definition of and Cockburn's elucidation on force
majeure for one to be exempt from any liability because of it, he must have exercised care, i.e., he should not
have been guilty of negligence.
Turning now to the legal issue posed in this petition, the error lies not in the disquisitions of the respondent
Court, but in the sweeping conclusion of petitioner. We agree with the respondent Court that petitioner offered
no reasonable objection to the exhibits. More than this, however, We note that the exhibits were admitted not
as independent evidence, but, primarily, as part of the testimony of Mrs. Gloria Chatto. Neither were the
exhibits made the main basis for the award of damages. As to the latter, including the award for attorney's fees,
the testimonial evidence presented is sufficient to support the same; moreover, petitioner was not deprived of
its right to test the, truth or falsity of private respondents' testimony through cross-examination or refute their
claim by its own evidence. It could not then be successfully argued by petitioner that the admission of the
exhibits violated the hearsay rule. As this Court sees it, the trial court admitted such merely as independently
relevant statements, which was not objectionable, for:
Where, regardless of the truth or the falsity of a statement, the fact that it has been made is relevant, the
hearsay rule does not apply, but the statement may be shown. Evidence as to the making of such statement is
not secondary but primary, for the statement itself may constitute a fact; in issue, or be circumstantially relevant
as to the existence of such a fact. 16
Furthermore, and with particular reference to the documents issued in the United States of America (Exhibits
"F", "F-1" to "F-13", inclusive), the main objection thereto was not that they are hearsay. In its written comment
and/or opposition to documentary exhibits, petitioner objected to their admission on the following grounds only:
. . . for being incompetent evidence considering that the same were not duly authenticated by the responsible
consular and/or embassy officials authorized to authenticate the said documents. 17
All told, the instant petition is without merit.
WHEREFORE, judgment is hereby rendered DENYING the instant petition with costs against petitioner.
SO ORDERED.
G.R. No. 118231 July 5, 1996
DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners,
vs.
COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G. VILLEGAS, respondents.
DAVIDE, JR., J.:p
Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of
this trust, men have been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi1 then
already provided: "If a physician make a deep incision upon a man with his bronze lancet and cause the man's
death, or operate on the eye socket of a man with his bronze lancet and destroy the man's eyes, they shall cut
off his hand." 2 Subsequently, Hippocrates3 wrote what was to become part of the healer's oath: "I will follow
that method of treatment which according to my ability and judgment, I consider for the benefit of my patients,
and abstain from whatever is deleterious and mischievous. . . . While I continue to keep this oath unviolated
may it be granted me to enjoy life and practice the art, respected by all men at all times but should I trespass
and violate this oath, may the reverse be my lot." At present, the primary objective of the medical profession if
the preservation of life and maintenance of the health of the people.4
Needless to say then, when a physician strays from his sacred duty and endangers instead the life of his
patient, he must be made to answer therefor. Although society today cannot and will not tolerate the
punishment meted out by the ancients, neither will it and this Court, as this case would show, let the act go
uncondemned.
The petitioners appeal from the decision5 of the Court of Appeals of 11 May 1994 in CA-G.R. CV No. 30851,
which reversed the decision6 of 21 December 1990 of Branch 30 of the Regional Trial Court (RTC) of Negros
Oriental in Civil Case No. 9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital, Dumaguete City from
January 9, 1978 to September 1989. Between 1987 and September, 1989 she was also the Actg. Head of the
Department of Obstetrics and Gynecology at the said Hospital.
Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as the latter's private patient
sometime before September 21, 1988.
In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr. Doris Teresita Sy who was also a
Resident Physician at the same Hospital, C.I. and O.R. Nurse Arlene Diones and some student nurses
performed a simple caesarean section on Mrs. Villegas at the Negros Oriental Provincial Hospital and after 45
minutes Mrs. Villegas delivered her first child, Rachel Acogido, at about 11:45 that morning. Thereafter, Plaintiff
remained confined at the Hospital until September 27, 1988 during which period of confinement she was
regularly visited by Dr. Batiquin. On September 28, 1988 Mrs. Villegas checked out of the Hospital. . . and on
that same day she paid Dr. Batiquin, thru the latter's secretary, the amount of P1,500.00 as "professional fee". .
..
Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and complained of being
feverish. She also gradually lost her appetite, so she consulted Dr. Batiquin at the latter's polyclinic who
prescribed for her certain medicines. . . which she had been taking up to December, 1988.
In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on October 31, 1988. . .
certifying to her physical fitness to return to her work on November 7, 1988. So, on the second week of
November, 1988 Mrs. Villegas returned to her work at the Rural Bank of Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end despite the medications
administered by Dr. Batiquin. When the pains became unbearable and she was rapidly losing weight she
consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete City on January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas at the Holy Child's
Hospital on January 20, 1989 she found Mrs. Villegas to be feverish, pale and was breathing fast. Upon
examination she felt an abdominal mass one finger below the umbilicus which she suspected to be either a
tumor of the uterus or an ovarian cyst, either of which could be cancerous. She had an x-ray taken of Mrs.
Villegas' chest, abdomen and kidney. She also took blood tests of Plaintiff. A blood count showed that Mrs.
Villegas had [an] infection inside her abdominal cavity. The results of all those examinations impelled Dr. Kho
to suggest that Mrs. Villegas submit to another surgery to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow discharge inside, an ovarian cyst
on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus, and a piece of rubber
material on the right side of the uterus embedded on [sic] the ovarian cyst, 2 inches by 3/4 inch in size. This
piece of rubber material which Dr. Kho described as a "foreign body" looked like a piece of a "rubber glove". . .
and which is [sic] also "rubber-drain like". . . . It could have been a torn section of a surgeon's gloves or could
have come from other sources. And this foreign body was the cause of the infection of the ovaries and
consequently of all the discomfort suffered by Mrs. Villegas after her delivery on September 21, 1988.7
The piece of rubber allegedly found near private respondent Flotilde Villegas's uterus was not presented in
court, and although Dr. Ma. Salud Kho Testified that she sent it to a pathologist in Cebu City for examination,8
it was not mentioned in the pathologist's Surgical Pathology Report.9
Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a Medical Certificate,10
a Progress Record,11 an Anesthesia Record,12 a Nurse's Record,13 and a Physician's Discharge
Summary.14 The trial court, however, regarded these documentary evidence as mere hearsay, "there being no
showing that the person or persons who prepared them are deceased or unable to testify on the facts therein
stated. . . . Except for the Medical Certificate (Exhibit "F"), all the above documents were allegedly prepared by
persons other than Dr. Kho, and she merely affixed her signature on some of them to express her agreement
thereto. . . ."15 The trial court also refused to give weight to Dr. Kho's testimony regarding the subject piece of
rubber as Dr. Kho "may not have had first-hand knowledge" thereof,16 as could be gleaned from her
statement, thus:
A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goes with the tissues but
unluckily I don't know where the rubber was. 17
The trial court deemed vital Dr. Victoria Batiquin's testimony that when she confronted Dr. Kho regarding the
piece of rubber, "Dr. Kho answered that there was rubber indeed but that she threw it away."18 This statement,
the trial court noted, was never denied nor disputed by Dr. Kho, leading it to conclude:
There are now two different versions on the whereabouts of that offending "rubber" — (1) that it was sent to the
Pathologist in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho threw it away as told by her to
Defendant. The failure of the Plaintiffs to reconcile these two different versions serve only to weaken their claim
against Defendant Batiquin.19
All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without admitting the private
respondents' documentary evidence, deemed Dr. Kho's positive testimony to definitely establish that a piece of
rubber was found near private respondent Villegas's uterus. Thus, the Court of Appeals reversed the decision
of the trial court, holding:
4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of evidence. The trial court
itself had narrated what happened to appellant Flotilde after the caesarean operation made by appellee doctor.
. . . After the second operation, appellant Flotilde became well and healthy. Appellant Flotilde's troubles were
caused by the infection due to the "rubber" that was left inside her abdomen. Both appellant; testified that after
the operation made by appellee doctor, they did not go to any other doctor until they finally decided to see
another doctor in January, 1989 when she was not getting any better under the care of appellee Dr. Batiquin. . .
. Appellee Dr. Batiquin admitted on the witness stand that she alone decided when to close the operating area;
that she examined the portion she operated on before closing the same. . . Had she exercised due diligence,
appellee Dr. Batiquin would have found the rubber and removed it before closing the operating area.20
The appellate court then ruled:
Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of P7,100.00 (Exh. G-1-A) plus
hospital and medical expenses together with doctor's fees in the total amount P9,900.00 (Exhs. G and G-2)] for
the second operation that saved her life.
For the miseries appellants endured for more than three (3) months, due to the negligence of appellee Dr.
Batiquin they are entitled to moral damages in the amount of P100,000.00; exemplary damages in the amount
of P20,000.00 and attorney's fees in the amount of P25,000.00.
The fact that appellant Flotilde can no longer bear children because her uterus and ovaries were removed by
Dr. Kho is not taken into consideration as it is not shown that the removal of said organs were the direct result
of the rubber left by appellee Dr. Batiquin near the uterus. What is established is that the rubber left by
appellee caused infection, placed the life of appellant Flotilde in jeopardy and caused appellant fear, worry and
anxiety. . . .
WHEREFORE, the appealed judgment, dismissing the complaint for damages is REVERSED and SET ASIDE.
Another judgment is hereby entered ordering defendants-appellees to pay plaintiffs-appellants the amounts of
P17,000.00 as and for actual damages; P100,000.00 as and for moral damages; P20,000.00 as and for
exemplary damages; and P25,000.00 as and for attorney's fees plus the costs of litigation.
SO ORDERED.21
From the above judgment, the petitioners appealed to this Court claiming that the appellate court: (1)
committed grave abuse of discretion by resorting to findings of fact not supported by the evidence on record,
and (2) exceeded its discretion, amounting to lack or excess of jurisdiction, when it gave credence to
testimonies punctured with contradictions and falsities.
The private respondents commented that the petition raised only questions of fact, which were not proper for
review by this Court.
While the rule is that only questions of law may be raised in a petition for review on certiorari, there are
exceptions, among which are when the factual findings of the trial court and the appellate court conflict, when
the appealed decision is clearly contradicted by the evidence on record, or when the appellate court
misapprehended the facts.22
After deciphering the cryptic petition, we find that the focal point of the instant appeal is the appreciation of Dr.
Kho's testimony. The petitioners contend that the Court of Appeals misappreciated the following portion of Dr.
Kho's testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind, just in case this would turn out to be a medico-legal
case, I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goes with the tissues but
unluckily I don't know where the rubber was. It was not in the Lab, it was not in Cebu. 23 (emphasis supplied)
The petitioners prefer the trial court's interpretation of the above testimony, i.e., that Dr. Kho's knowledge of the
piece of rubber was based on hearsay. The Court of Appeals, on the other hand, concluded that the
underscored phrase was taken out of context by the trial court. According to the Court of Appeals, the trial
court should have likewise considered the other portions of Dr. Kho's testimony, especially the following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-yellow discharge inside the abdomen, there was an ovarian
cyst on the left and side and there was also an ovarian cyst on the right which, on opening up or freeing it up
from the uterus, turned out to be pus. Both ovaries turned out. . . to have pus. And then, cleaning up the
uterus, at the back of the uterus it was very dirty, it was full of pus. And there was a [piece of] rubber, we found
a [piece of] rubber on the right
side. 24
We agree with the Court of Appeals. The phrase relied upon by the trial court does not negate the fact that Dr.
Kho saw a piece of rubber in private respondent Villegas's abdomen, and that she sent it to a laboratory and
then to Cebu City for examination by a pathologist.25 Not even the Pathologist's Report, although devoid of
any mention of a piece of rubber, could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the piece
of rubber could not be based on other than first-hand knowledge for, as she asserted before the trial court:
Q But you are sure you have seen [the piece of rubber]?
A Oh yes. I was not the only one who saw it. 26
The petitioners emphasize that the private respondents never reconciled Dr. Kho's testimony with Dr. Batiquin's
claim on the witness stand that when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter said that
there was a piece of rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not objected
to, and hence, the same is admissible27 but it carries no probative value.28 Nevertheless, assuming
otherwise, Dr. Batiquin's statement cannot belie the fact that Dr. Kho found a piece of rubber near private
respondent Villegas's uterus. And even if we were to doubt Dr. Kho as to what she did to the piece of rubber,
i.e., whether she threw it away or sent it to Cebu City, we are not justified in distrusting her as to her recovery
of a piece of rubber from private respondent Villegas's abdomen. On this score, it is perfectly reasonable to
believe the testimony of a witness with respect to some facts and disbelieve his testimony with respect to other
facts. And it has been aptly said that even when a witness is found to have deliberately falsified in some
material particulars, it is not required that the whole of his uncorroborated testimony be rejected, but such
portions thereof deemed worthy of belief may be credited.29
It is here worth noting that the trial court paid heed to the following portions of Dr. Batiquin's testimony: that no
rubber drain was used in the operation,30 and that there was neither any tear on Dr. Batiquin's gloves after the
operation nor blood smears on her hands upon removing her gloves.31 Moreover, the trial court pointed out
that the absence of a rubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during the
operation on private respondent Villegas.32 But the trial court failed to recognize that the assertions of Drs.
Batiquin and Sy were denials or negative testimonies. Well-settled is the rule that positive testimony is stronger
than negative testimony.33 Of course, as the petitioners advocate, such positive testimony must come from a
credible source, which leads us to the second assigned error.
While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a regarding of the
said testimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank
throughout her turn on the witness stand. Furthermore, no motive to state any untruth was ever imputed
against Dr. Kho, leaving her trustworthiness unimpaired.34 The trial court's following declaration shows that
while it was critical of the lack of care with which Dr. Kho handled the piece of rubber, it was not prepared to
doubt Dr. Kho's credibility, thus only supporting our appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less than honest when she testified about her findings, but it can also be said
that she did not take the most appropriate precaution to preserve that "piece of rubber" as an eloquent
evidence of what she would reveal should there be a "legal problem" which she claim[s] to have anticipated.35
Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony [that a piece of
rubber was indeed found in private respondent Villega's abdomen] prevails over the negative testimony in favor
of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve into the nature and
operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury is shown to be under the
management of the defendant, and the accident is such as in the ordinary course of things does not happen in
those who have the management use proper care, it affords reasonable evidence, in the absence of an
explanation by the defendant, that the accident arose from want of care." Or as Black's Law Dictionary puts it:
Res ipsa loquitur. The thing speaks for itself. Rebuctable presumption or inference that defendant was
negligent, which arises upon proof that [the] instrumentality causing injury was in defendant's exclusive control,
and that the accident was one which ordinary does not happen in absence of negligence. Res ipsa loquitur is
[a] rule of evidence whereby negligence of [the] alleged wrongdoer may be inferred from [the] mere fact that
[the] accident happened provided [the] character of [the] accident and circumstances attending it lead
reasonably to belief that in [the] absence of negligence it would not have occurred and that thing which caused
injury is shown to have been under [the] management and control of [the] alleged wrongdoer. . . . Under [this]
doctrine
. . . the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence
that [the] injury was caused by an agency or instrumentality under [the] exclusive control and management of
defendant, and that the occurrence [sic] was such that in the ordinary course of things would not happen if
reasonable care had been used.
xxx
xxx
xxx
The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes
that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof
of negligence. The doctrine is not a rule of substantive law, but merely a mode of proof or a mere procedural
convenience. The rule, when applicable to the facts and circumstances of a particular case, is not intended to
and does not dispense with the requirement of proof of culpable negligence on the party charged. It merely
determines and regulates what shall be prima facie evidence thereof and facilitates the burden of plaintiff of
proving a breach of the duty of due care. The doctrine can be invoked when and only when, under the
circumstances involved, direct evidence is absent and not readily available.36
In the instant case, all the requisites for recourse to the doctrine are present. First, the entire proceedings of
the caesarean section were under the exclusive control of Dr. Batiquin. In this light, the private respondents
were bereft of direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into
private respondent Villegas's body, which, needless to say, does not occur unless through the intersection of
negligence. Second, since aside from the caesarean section, private respondent Villegas underwent no other
operation which could have caused the offending piece of rubber to appear in her uterus, it stands to reason
that such could only have been a by-product of the caesarean section performed by Dr. Batiquin. The
petitioners, in this regard, failed to overcome the presumption of negligence arising from resort to the doctrine
of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in private
respondent Villegas's abdomen and for all the adverse effects thereof.
As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of
the people,3 7 and the State's compelling interest to enact measures to protect the public from "the potentially
deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for
disease or trauma."38 Indeed, a physician is bound to serve the interest of his patients "with the greatest of
solicitude, giving them always his best talent and skill."39 Through her tortious conduct, the petitioner
endangered the life of Flotilde Villegas, in violation of her profession's rigid ethical code and in contravention of
the legal standards set forth for professionals, in general,40 and members of the medical profession,41 in
particular.
WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in CA-G.R. CV No. 30851 is
hereby AFFIRMED in toto.
Costs against the petitioners.
SO ORDERED.
G.R. No. 137873
April 20, 2001
D. M. CONSUNJI, INC., petitioner,
vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.
KAPUNAN, J.:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji, Inc., fell 14
floors from the Renaissance Tower, Pasig City to his death.
PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report dated
November 25, 1990, stating that:
x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where he was pronounced
dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at around 2:15 p.m. of the same date.
Investigation disclosed that at the given time, date and place, while victim Jose A. Juego together with Jessie
Jaluag and Delso Destajo [were] performing their work as carpenter[s] at the elevator core of the 14th floor of
the Tower D, Renaissance Tower Building on board a [p]latform made of channel beam (steel) measuring 4.8
meters by 2 meters wide with pinulid plywood flooring and cable wires attached to its four corners and hooked
at the 5 ton chain block, when suddenly, the bolt or pin which was merely inserted to connect the chain block
with the [p]latform, got loose xxx causing the whole [p]latform assembly and the victim to fall down to the
basement of the elevator core, Tower D of the building under construction thereby crushing the victim of death,
save his two (2) companions who luckily jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then on board and
performing work, fell. And the falling of the [p]latform was due to the removal or getting loose of the pin which
was merely inserted to the connecting points of the chain block and [p]latform but without a safety lock.1
On May 9, 1991, Jose Juego’s widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a complaint for
damages against the deceased’s employer, D.M. Consunji, Inc. The employer raised, among other defenses,
the widow’s prior availment of the benefits from the State Insurance Fund.
After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of the RTC
decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:
1. P50,000.00 for the death of Jose A. Juego.
2. P10,000.00 as actual and compensatory damages.
3. P464,000.00 for the loss of Jose A. Juego’s earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorney’s fees, plus the costs of suit.
SO ORDERED.2
On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision on the following grounds:
THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS ADMISSIBLE
EVIDENCE OF THE ALLEGED NEGLIGENCE OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA LOQUITOR [sic] IS
APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED NEGLIGENT UNDER
ARTICLE 2180 OF THE CIVIL CODE, AND
THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT PRECLUDED FROM
RECOVERING DAMAGES UNDER THE CIVIL CODE.3
Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible. The CA
ruled otherwise. It held that said report, being an entry in official records, is an exception to the hearsay rule.
The Rules of Court provide that a witness can testify only to those facts which he knows of his personal
knowledge, that is, which are derived from his perception.4 A witness, therefore, may not testify as what he
merely learned from others either because he was told or read or heard the same. Such testimony is
considered hearsay and may not be received as proof of the truth of what he has learned.5 This is known as
the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as evidence
applies to written, as well as oral statements.6
The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and
untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light
and exposed by the test of cross-examiantion.7 The hearsay rule, therefore, excludes evidence that cannot be
tested by cross-examination.8
The Rules of Court allow several exceptions to the rule,9 among which are entries in official records. Section
44, Rule 130 provides:
Entries in official records made in the performance of his duty made in the performance of his duty by a public
officer of the Philippines, or by a person in the performance of a duty specially enjoined by law are prima facie
evidence of the facts therein stated.
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice Moran, enumerated
the requisites for admissibility under the above rule:
(a) that the entry was made by a public officer or by another person specially enjoined by law to do so;
(b) that it was made by the public officer in the performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; and
(c) that the public officer or other person had sufficient knowledge of the facts by him stated, which must have
been acquired by him personally or through official information.
The CA held that the police report meets all these requisites. Petitioner contends that the last requisite is not
present.
The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial court. In
Rodriguez vs. Court of Appeals,11 which involved a Fire Investigation Report, the officer who signed the fire
report also testified before the trial court. This Court held that the report was inadmissible for the purpose of
proving the truth of the statements contained in the report but admissible insofar as it constitutes part of the
testimony of the officer who executed the report.
x x x. Since Major Enriquez himself took the witness stand and was available for cross-examination, the
portions of the report which were of his personal knowledge or which consisted of his perceptions and
conclusions were not hearsay. The rest of the report, such as the summary of the statements of the parties
based on their sworn statements (which were annexed to the Report) as well as the latter, having been
included in the first purpose of the offer [as part of the testimony of Major Enriquez], may then be considered
as independently relevant statements which were gathered in the course of the investigation and may thus be
admitted as such, but not necessarily to prove the truth thereof. It has been said that:
"Where regardless of the truth or falsity of a statement, the fact that it has been made is relevant, the hearsay
rule does not apply, but the statement may be shown. Evidence as to the making of such statement is not
secondary but primary, for the statement itself may constitute a fact in issue, or be circumstantially relevant as
to the existence of such a fact."
When Major Enriquez took the witness stand, testified for petitioners on his Report and made himself available
for cross-examination by the adverse party, the Report, insofar as it proved that certain utterances were made
(but not their truth), was effectively removed from the ambit of the aforementioned Section 44 of Rule 130.
Properly understood, this section does away with the testimony in open court of the officer who made the
official record, considers the matter as an exception to the hearsay rule and makes the entries in said official
record admissible in evidence as prima facie evidence of the facts therein stated. The underlying reasons for
this exceptionary rule are necessity and trustworthiness, as explained in Antillon v. Barcelon.
The litigation is unlimited in which testimony by officials is daily needed; the occasions in which the officials
would be summoned from his ordinary duties to declare as a witness are numberless. The public officers are
few in whose daily work something is not done in which testimony is not needed from official sources. Were
there no exception for official statements, hosts of officials would be found devoting the greater part of their
time to attending as witnesses in court or delivering deposition before an officer. The work of administration of
government and the interest of the public having business with officials would alike suffer in consequence. For
these reasons, and for many others, a certain verity is accorded such documents, which is not extended to
private documents. (3 Wigmore on Evidence, Sec. 1631).
The law reposes a particular confidence in public officers that it presumes they will discharge their several
trusts with accuracy and fidelity; and, therefore, whatever acts they do in discharge of their duty may be given
in evidence and shall be taken to be true under such a degree of caution as to the nature and circumstances of
each case may appear to require.
It would have been an entirely different matter if Major Enriquez was not presented to testify on his report. In
that case the applicability of Section 44 of Rule 143 would have been ripe for determination, and this Court
would have agreed with the Court of Appeals that said report was inadmissible since the aforementioned third
requisite was not satisfied. The statements given by the sources of information of Major Enriquez failed to
qualify as "official information," there being no showing that, at the very least, they were under a duty to give
the statements for record.
Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the statements
contained therein but is admissible insofar as it constitutes part of the testimony of PO3 Villanueva.
In any case, the Court holds that portions of PO3 Villanueva’s testimony which were of his personal knowledge
suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3 Villanueva had seen
Juego’s remains at the morgue,12 making the latter’s death beyond dispute. PO3 Villanueva also conducted
an ocular inspection of the premises of the building the day after the incident13 and saw the platform for
himself.14 He observed that the platform was crushed15 and that it was totally damaged.16 PO3 Villanueva
also required Garcia and Fabro to bring the chain block to the police headquarters. Upon inspection, he
noticed that the chain was detached from the lifting machine, without any pin or bolt.17
What petitioner takes particular exception to is PO3 Villanueva’s testimony that the cause of the fall of the
platform was the loosening of the bolt from the chain block. It is claimed that such portion of the testimony is
mere opinion. Subject to certain exceptions,18 the opinion of a witness is generally not admissible.19
Petitioner’s contention, however, loses relevance in the face of the application of res ipsa loquitur by the CA.
The effect of the doctrine is to warrant a presumption or inference that the mere fall of the elevator was a result
of the person having charge of the instrumentality was negligent. As a rule of evidence, the doctrine of res ipsa
loquitur is peculiar to the law of negligence which recognizes that prima facie negligence may be established
without direct proof and furnishes a substitute for specific proof of negligence.20
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident or injury
will not generally give rise to an inference or presumption that it was due to negligence on defendant’s part,
under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction speaks for itself, or in one
jurisdiction, that the thing or instrumentality speaks for itself, the facts or circumstances accompanying an
injury may be such as to raise a presumption, or at least permit an inference of negligence on the part of the
defendant, or some other person who is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused the injury complained of was under the
control or management of the defendant, and that the occurrence resulting in the injury was such as in the
ordinary course of things would not happen if those who had its control or management used proper care,
there is sufficient evidence, or, as sometimes stated, reasonable evidence, in the absence of explanation by
the defendant, that the injury arose from or was caused by the defendant’s want of care.21
One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent or not
available.22
The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the
instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of
ascertaining it and that the plaintiff has no such knowledge, and therefore is compelled to allege negligence in
general terms and to rely upon the proof of the happening of the accident in order to establish negligence. The
inference which the doctrine permits is grounded upon the fact that the chief evidence of the true cause,
whether culpable or innocent, is practically accessible to the defendant but inaccessible to the injured person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without knowledge
of the cause, reaches over to defendant who knows or should know the cause, for any explanation of care
exercised by the defendant in respect of the matter of which the plaintiff complains. The res ipsa loquitur
doctrine, another court has said, is a rule of necessity, in that it proceeds on the theory that under the peculiar
circumstances in which the doctrine is applicable, it is within the power of the defendant to show that there was
no negligence on his part, and direct proof of defendant’s negligence is beyond plaintiff’s power. Accordingly,
some court add to the three prerequisites for the application of the res ipsa loquitur doctrine the further
requirement that for the res ipsa loquitur doctrine to apply, it must appear that the injured party had no
knowledge or means of knowledge as to the cause of the accident, or that the party to be charged with
negligence has superior knowledge or opportunity for explanation of the accident.23
The CA held that all the requisites of res ipsa loquitur are present in the case at bar:
There is no dispute that appellee’s husband fell down from the 14th floor of a building to the basement while he
was working with appellant’s construction project, resulting to his death. The construction site is within the
exclusive control and management of appellant. It has a safety engineer, a project superintendent, a carpenter
leadman and others who are in complete control of the situation therein. The circumstances of any accident
that would occur therein are peculiarly within the knowledge of the appellant or its employees. On the other
hand, the appellee is not in a position to know what caused the accident. Res ipsa loquitur is a rule of
necessity and it applies where evidence is absent or not readily available, provided the following requisites are
present: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the
instrumentality or agency which caused the injury was under the exclusive control of the person charged with
negligence; and (3) the injury suffered must not have been due to any voluntary action or contribution on the
part of the person injured. x x x.
No worker is going to fall from the 14th floor of a building to the basement while performing work in a
construction site unless someone is negligent[;] thus, the first requisite for the application of the rule of res ipsa
loquitur is present. As explained earlier, the construction site with all its paraphernalia and human resources
that likely caused the injury is under the exclusive control and management of appellant[;] thus[,] the second
requisite is also present. No contributory negligence was attributed to the appellee’s deceased husband[;]
thus[,] the last requisite is also present. All the requisites for the application of the rule of res ipsa loquitur are
present, thus a reasonable presumption or inference of appellant’s negligence arises. x x x.24
Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but argues
that the presumption or inference that it was negligent did not arise since it "proved that it exercised due care
to avoid the accident which befell respondent’s husband."
Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the defendant’s
negligence is presumed or inferred25 when the plaintiff establishes the requisites for the application of res ipsa
loquitur. Once the plaintiff makes out a prima facie case of all the elements, the burden then shifts to defendant
to explain.26 The presumption or inference may be rebutted or overcome by other evidence and, under
appropriate circumstances disputable presumption, such as that of due care or innocence, may outweigh the
inference.27 It is not for the defendant to explain or prove its defense to prevent the presumption or inference
from arising. Evidence by the defendant of say, due care, comes into play only after the circumstances for the
application of the doctrine has been established.1âwphi1.nêt
In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before the police
investigator as evidence of its due care. According to Fabro’s sworn statement, the company enacted rules and
regulations for the safety and security of its workers. Moreover, the leadman and the bodegero inspect the
chain block before allowing its use.
It is ironic that petitioner relies on Fabro’s sworn statement as proof of its due care but, in arguing that private
respondent failed to prove negligence on the part of petitioner’s employees, also assails the same statement
for being hearsay.
Petitioner is correct. Fabro’s sworn statement is hearsay and inadmissible. Affidavits are inadmissible as
evidence under the hearsay rule, unless the affiant is placed on the witness stand to testify thereon.28 The
inadmissibility of this sort of evidence is based not only on the lack of opportunity on the part of the adverse
party to cross-examine the affiant, but also on the commonly known fact that, generally, an affidavit is not
prepared by the affiant himself but by another who uses his own language in writing the affiant’s statements
which may either be omitted or misunderstood by the one writing them.29 Petitioner, therefore, cannot use said
statement as proof of its due care any more than private respondent can use it to prove the cause of her
husband’s death. Regrettably, petitioner does not cite any other evidence to rebut the inference or presumption
of negligence arising from the application of res ipsa loquitur, or to establish any defense relating to the
incident.
Next, petitioner argues that private respondent had previously availed of the death benefits provided under the
Labor Code and is, therefore, precluded from claiming from the deceased’s employer damages under the Civil
Code.
Article 173 of the Labor Code states:
Article 173. Extent of liability. – Unless otherwise provided, the liability of the State Insurance Fund under this
Title shall be exclusive and in place of all other liabilities of the employer to the employee, his dependents or
anyone otherwise entitled to receive damages on behalf of the employee or his dependents. The payment of
compensation under this Title shall not bar the recovery of benefits as provided for in Section 699 of the
Revised Administrative Code, Republic Act Numbered Eleven hundred sixty-one, as amended, Republic Act
Numbered Six hundred ten, as amended, Republic Act Numbered Forty-eight hundred sixty-four as amended,
and other laws whose benefits are administered by the System or by other agencies of the government.
The precursor of Article 173 of the Labor Code, Section 5 of the Workmen’s Compensation Act, provided that:
Section 5. Exclusive right to compensation. – The rights and remedies granted by this Act to an employee by
reason of a personal injury entitling him to compensation shall exclude all other rights and remedies accruing
to the employee, his personal representatives, dependents or nearest of kin against the employer under the
Civil Code and other laws because of said injury x x x.
Whether Section 5 of the Workmen’s Compensation Act allowed recovery under said Act as well as under the
Civil Code used to be the subject of conflicting decisions. The Court finally settled the matter in Floresca
vs.Philex Mining Corporation,30 which involved a cave-in resulting in the death of the employees of the Philex
Mining Corporation. Alleging that the mining corporation, in violation of government rules and regulations,
failed to take the required precautions for the protection of the employees, the heirs of the deceased
employees filed a complaint against Philex Mining in the Court of First Instance (CFI). Upon motion of Philex
Mining, the CFI dismissed the complaint for lack of jurisdiction. The heirs sought relief from this Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En Banc,31 following
the rule in Pacaña vs. Cebu Autobus Company, held in the affirmative.
WE now come to the query as to whether or not the injured employee or his heirs in case of death have a right
of selection or choice of action between availing themselves of the worker’s right under the Workmen’s
Compensation Act and suing in the regular courts under the Civil Code for higher damages (actual, moral and
exemplary) from the employers by virtue of the negligence or fault of the employers or whether they may avail
themselves cumulatively of both actions, i.e., collect the limited compensation under the Workmen’s
Compensation Act and sue in addition for damages in the regular courts.
In disposing of a similar issue, this Court in Pacaña vs. Cebu Autobus Company, 32 SCRA 442, ruled that an
injured worker has a choice of either to recover from the employer the fixed amounts set by the Workmen’s
Compensation Act or to prosecute an ordinary civil action against the tortfeasor for higher damages but he
cannot pursue both courses of action simultaneously. [Underscoring supplied.]
Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under the Civil
Code despite having availed of the benefits provided under the Workmen’s Compensation Act. The Court
reasoned:
With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May 14, 1968 before
the court a quo, that the heirs of the deceased employees, namely Emerito Obra, Larry Villar, Jr., Aurelio
Lanuza, Lorenzo Isla and Saturnino submitted notices and claims for compensation to the Regional Office No.
1 of the then Department of Labor and all of them have been paid in full as of August 25, 1967, except
Saturnino Martinez whose heirs decided that they be paid in installments x x x. Such allegation was admitted
by herein petitioners in their opposition to the motion to dismiss dated may 27, 1968 x x x in the lower court,
but they set up the defense that the claims were filed under the Workmen’s Compensation Act before they
learned of the official report of the committee created to investigate the accident which established the criminal
negligence and violation of law by Philex, and which report was forwarded by the Director of Mines to then
Executive Secretary Rafael Salas in a letter dated October 19, 1967 only x x x.
WE hold that although the other petitioners had received the benefits under the Workmen’s Compensation Act,
such my not preclude them from bringing an action before the regular court because they became cognizant of
the fact that Philex has been remiss in its contractual obligations with the deceased miners only after receiving
compensation under the Act. Had petitioners been aware of said violation of government rules and regulations
by Philex, and of its negligence, they would not have sought redress under the Workmen’s Compensation
Commission which awarded a lesser amount for compensation. The choice of the first remedy was based on
ignorance or a mistake of fact, which nullifies the choice as it was not an intelligent choice. The case should
therefore be remanded to the lower court for further proceedings. However, should the petitioners be
successful in their bid before the lower court, the payments made under the Workmen’s Compensation Act
should be deducted from the damages that may be decreed in their favor. [Underscoring supplied.]
The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime
Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining Corp. vs. Abeleda.34 In
the last case, the Court again recognized that a claimant who had been paid under the Act could still sue under
the Civil Code. The Court said:
In the Robles case, it was held that claims for damages sustained by workers in the course of their
employment could be filed only under the Workmen’s Compensation Law, to the exclusion of all further claims
under other laws. In Floresca, this doctrine was abrogated in favor of the new rule that the claimants may
invoke either the Workmen’s Compensation Act or the provisions of the Civil Code, subject to the consequence
that the choice of one remedy will exclude the other and that the acceptance of compensation under the
remedy chosen will preclude a claim for additional benefits under the other remedy. The exception is where a
claimant who has already been paid under the Workmen’s Compensation Act may still sue for damages under
the Civil Code on the basis of supervening facts or developments occurring after he opted for the first remedy.
(Underscoring supplied.)
Here, the CA held that private respondent’s case came under the exception because private respondent was
unaware of petitioner’s negligence when she filed her claim for death benefits from the State Insurance Fund.
Private respondent filed the civil complaint for damages after she received a copy of the police investigation
report and the Prosecutor’s Memorandum dismissing the criminal complaint against petitioner’s personnel.
While stating that there was no negligence attributable to the respondents in the complaint, the prosecutor
nevertheless noted in the Memorandum that, "if at all," the "case is civil in nature." The CA thus applied the
exception in Floresca:
x x x We do not agree that appellee has knowledge of the alleged negligence of appellant as early as
November 25, 1990, the date of the police investigator’s report. The appellee merely executed her sworn
statement before the police investigator concerning her personal circumstances, her relation to the victim, and
her knowledge of the accident. She did not file the complaint for "Simple Negligence Resulting to Homicide"
against appellant’s employees. It was the investigator who recommended the filing of said case and his
supervisor referred the same to the prosecutor’s office. This is a standard operating procedure for police
investigators which appellee may not have even known. This may explain why no complainant is mentioned in
the preliminary statement of the public prosecutor in her memorandum dated February 6, 1991, to wit:
"Respondent Ferdinand Fabro x x x are being charged by complainant of "Simple Negligence Resulting to
Homicide." It is also possible that the appellee did not have a chance to appear before the public prosecutor as
can be inferred from the following statement in said memorandum: "Respondents who were notified pursuant
to Law waived their rights to present controverting evidence," thus there was no reason for the public
prosecutor to summon the appellee. Hence, notice of appellant’s negligence cannot be imputed on appellee
before she applied for death benefits under ECC or before she received the first payment therefrom. Her using
the police investigation report to support her complaint filed on May 9, 1991 may just be an afterthought after
receiving a copy of the February 6, 1991 Memorandum of the Prosecutor’s Office dismissing the criminal
complaint for insufficiency of evidence, stating therein that: "The death of the victim is not attributable to any
negligence on the part of the respondents. If at all and as shown by the records this case is civil in nature."
(Underscoring supplied.) Considering the foregoing, We are more inclined to believe appellee’s allegation that
she learned about appellant’s negligence only after she applied for and received the benefits under ECC. This
is a mistake of fact that will make this case fall under the exception held in the Floresca ruling.35
The CA further held that not only was private respondent ignorant of the facts, but of her rights as well:
x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her educational
attainment; that she did not know what damages could be recovered from the death of her husband; and that
she did not know that she may also recover more from the Civil Code than from the ECC. x x x.36
Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her complaint
that her application and receipt of benefits from the ECC were attended by ignorance or mistake of fact. Not
being an issue submitted during the trial, the trial court had no authority to hear or adjudicate that issue."
Petitioner also claims that private respondent could not have been ignorant of the facts because as early as
November 28, 1990, private respondent was the complainant in a criminal complaint for "Simple Negligence
Resulting to Homicide" against petitioner’s employees. On February 6, 1991, two months before the filing of
the action in the lower court, Prosecutor Lorna Lee issued a resolution finding that, although there was
insufficient evidence against petitioner’s employees, the case was "civil in nature." These purportedly show
that prior to her receipt of death benefits from the ECC on January 2, 1991 and every month thereafter, private
respondent also knew of the two choices of remedies available to her and yet she chose to claim and receive
the benefits from the ECC.
When a party having knowledge of the facts makes an election between inconsistent remedies, the election is
final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the absence of fraud by
the other party. The first act of election acts as a bar.37 Equitable in nature, the doctrine of election of remedies
is designed to mitigate possible unfairness to both parties. It rests on the moral premise that it is fair to hold
people responsible for their choices. The purpose of the doctrine is not to prevent any recourse to any remedy,
but to prevent a double redress for a single wrong.38
The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule in
Floresca that a claimant cannot simultaneously pursue recovery under the Labor Code and prosecute an
ordinary course of action under the Civil Code. The claimant, by his choice of one remedy, is deemed to have
waived the other.
Waiver is the intentional relinquishment of a known right.39
[It] is an act of understanding that presupposes that a party has knowledge of its rights, but chooses not to
assert them. It must be generally shown by the party claiming a waiver that the person against whom the
waiver is asserted had at the time knowledge, actual or constructive, of the existence of the party’s rights or of
all material facts upon which they depended. Where one lacks knowledge of a right, there is no basis upon
which waiver of it can rest. Ignorance of a material fact negates waiver, and waiver cannot be established by a
consent given under a mistake or misapprehension of fact.
A person makes a knowing and intelligent waiver when that person knows that a right exists and has adequate
knowledge upon which to make an intelligent decision.
Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an awareness of its
consequences. That a waiver is made knowingly and intelligently must be illustrated on the record or by the
evidence.40
That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception in Floresca.
It is in light of the foregoing principles that we address petitioner’s contentions.
Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her complaint
that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to burden private respondent
with raising waiver as an issue. On the contrary, it is the defendant who ought to plead waiver, as petitioner did
in pages 2-3 of its Answer;41 otherwise, the defense is waived. It is, therefore, perplexing for petitioner to now
contend that the trial court had no jurisdiction over the issue when petitioner itself pleaded waiver in the
proceedings before the trial court.
Does the evidence show that private respondent knew of the facts that led to her husband’s death and the
rights pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the "fact" that
served as a basis for nullifying the waiver is the negligence of petitioner’s employees, of which private
respondent purportedly learned only after the prosecutor issued a resolution stating that there may be civil
liability. In Floresca, it was the negligence of the mining corporation and its violation of government rules and
regulations. Negligence, or violation of government rules and regulations, for that matter, however, is not a fact,
but a conclusion of law, over which only the courts have the final say. Such a conclusion binds no one until the
courts have decreed so. It appears, therefore, that the principle that ignorance or mistake of fact nullifies a
waiver has been misapplied in Floresca and in the case at bar.
In any event, there is no proof that private respondent knew that her husband died in the elevator crash when
on November 15, 1990 she accomplished her application for benefits from the ECC. The police investigation
report is dated November 25, 1990, 10 days after the accomplishment of the form. Petitioner filed the
application in her behalf on November 27, 1990.
There is also no showing that private respondent knew of the remedies available to her when the claim before
the ECC was filed. On the contrary, private respondent testified that she was not aware of her rights.
Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one from
compliance therewith. As judicial decisions applying or interpreting the laws or the Constitution form part of the
Philippine legal system (Article 8, Civil Code), private respondent cannot claim ignorance of this Court’s ruling
in Floresca allowing a choice of remedies.
The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory laws.42 This
may be deduced from the language of the provision, which, notwithstanding a person’s ignorance, does not
excuse his or her compliance with the laws. The rule in Floresca allowing private respondent a choice of
remedies is neither mandatory nor prohibitory. Accordingly, her ignorance thereof cannot be held against her.
Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the total
amount private respondent ought to receive from the ECC, although it appears from Exhibit "K"43 that she
received P3,581.85 as initial payment representing the accrued pension from November 1990 to March 1991.
Her initial monthly pension, according to the same Exhibit "K," was P596.97 and present total monthly pension
was P716.40. Whether the total amount she will eventually receive from the ECC is less than the sum of
P644,000.00 in total damages awarded by the trial court is subject to speculation, and the case is remanded to
the trial court for such determination. Should the trial court find that its award is greater than that of the ECC,
payments already received by private respondent under the Labor Code shall be deducted from the trial court'’
award of damages. Consistent with our ruling in Floresca, this adjudication aims to prevent double
compensation.
WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine whether the
award decreed in its decision is more than that of the ECC. Should the award decreed by the trial court be
greater than that awarded by the ECC, payments already made to private respondent pursuant to the Labor
Code shall be deducted therefrom. In all other respects, the Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
G.R. No. 146635 December 14, 2005
MARCELO MACALINAO, Substituted by ESPERANZA MACALINAO and ANTONIO MACALINAO,
Petitioners,
vs.
EDDIE MEDECIELO ONG and GENOVEVO SEBASTIAN, Respondents.
DECISION
Tinga, J.:
Before this Court is a Petition for Review on Certiorari assailing the Decision1 and Resolution2 of the Court of
Appeals dated 31 May 2000 and 7 September 2000, respectively, in CA-G.R. CV No. 52963. The Court of
Appeals reversed the judgment of the trial court and dismissed the complaint for damages filed by Marcelo
Macalinao (Macalinao) against Eddie Medecielo Ong (Ong) and Genovevo Sebastian (Sebastian) for
insufficiency of evidence.
The antecedent facts follow.
Macalinao and Ong were employed as utility man and driver, respectively, at the Genetron International
Marketing (Genetron), a single proprietorship owned and operated by Sebastian. On 25 April 1992, Sebastian
instructed Macalinao, Ong and two truck helpers to deliver a heavy piece of machinery–a reactor/motor for
mixing chemicals, to Sebastian’s manufacturing plant in Angat, Bulacan. While in the process of complying with
the order, the vehicle driven by Ong, Genetron’s Isuzu Elf truck with plate no. PMP-106 hit and bumped the
front portion of a private jeepney with plate no. DAF-922 along Caypombo, Sta. Maria, Bulacan at around 11:20
in the morning.3
Both vehicles incurred severe damages while the passengers sustained physical injuries as a consequence of
the collision.4 Macalinao incurred the most serious injuries
among the passengers of the truck. He was initially brought to the Sta. Maria District Hospital for first aid
treatment but in view of the severity of his condition, he was transferred to the Philippine Orthopedic Center at
the instance of Sebastian. He was again moved to the Capitol Medical Center by his parents, petitioners
herein, for medical reasons and later to the Philippine General Hospital for financial considerations.5
Macalinao’s body was paralyzed and immobilized from the neck down as a result of the accident and per
doctor’s advice, his foot was amputated. He also suffered from bed sores and infection. His immedicable
condition, coupled with the doctor’s recommendation, led his family to bring him home where he died on 7
November 1992.6
Before he died, Macalinao was able to file an action for damages against both Ong and Sebastian before the
Regional Trial Court (RTC) of Quezon City, Branch 81.7 After his death, Macalinao was substituted by his
parents in the action.8 A criminal case for reckless imprudence
resulting to serious physical injuries9 had also been instituted earlier against Ong but for reasons which do not
appear in the records of this case, trial thereon did not ensue.10
After trial in the civil action, the RTC held that based on the evidence, Ong drove the Isuzu truck in a reckless
and imprudent manner thereby causing the same to hit the private jeepney. It observed that while respondents
claimed that Ong was driving cautiously and prudently at the time of the mishap, no evidence was presented to
substantiate the claim.11 It declared Ong negligent and at the same time, it held that Sebastian failed to
exercise the diligence of a good father of a family in the selection and supervision of Ong. Consequently, the
trial court pronounced the two of them jointly liable to pay actual, moral, and exemplary damages as well as
civil indemnity for Macalinao’s death. The trial court subsequently increased the monetary award12 upon
petitioners’ motion for reconsideration thereof.
On appeal, the appellate court reversed the findings of the trial court. It held that the evidence presented by
petitioners was woefully scant to support a verdict of negligence against Ong. And since respondents’ liability
hinged squarely on proof of Ong’s negligence, neither of them could be held liable for damages to
petitioners.13
Aggrieved at the ruling, petitioners elevated the case to this Court. They herein contend that contrary to the
conclusion reached by the Court of Appeals, the evidence conclusively establish fault or negligence on the part
of Ong and justify the award of damages in their favor.
The petition is meritorious.
The issue of negligence is factual and, in quasi-delicts, crucial in the award of damages.14 In the case at bar,
the crux of the controversy is the sufficiency of the evidence presented to support a finding of negligence
against Ong. Given the contradictory conclusions of the trial court and the appellate court on this issue, this
Court is impelled to ascertain for itself which court made the correct determination.
While as a rule factual findings of the Court of Appeals are deemed conclusive in cases brought to us on
appeal, we have also consistently pronounced that we may review its findings of fact in the following instances,
among others:
(i) when the judgment of the Court of Appeals was based on a misapprehension of facts; (ii) when the factual
findings are conflicting; (iii) when the Court of Appeals manifestly overlooked certain relevant facts not disputed
by the parties and which, if properly considered, would justify a different conclusion; and (iv) where the findings
of fact of the Court of Appeals are contrary to those of the trial court, or are mere conclusions without citation of
specific evidence, or where the facts set forth by the petitioner are not disputed by the respondent, or where
the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by
the evidence on record.15
Said exceptions obtain in this case thus, a departure from the application of the general rule is warranted.
In reversing the trial court and absolving respondents from liability, the appellate court made the following
pronouncement:
The evidence presented is woefully scant. The pictures of the collision afford no basis for concluding that it was
the fault of the defendant driver, or that he was driving recklessly. The police report contains no findings as to
the road conditions, estimates of the relative speed of the vehicles, or their exact position at the time of the
accident. And even so, entries in the police blotter should not be given significance or probative value as they
do not constitute conclusive proof of the truth thereof. Nor were eyewitnesses presented, not even affidavits or
statements to give any indication as to what actually happened. The police investigator’s findings are sketchy
at best, with only the phrase "Isuzu lost control" as his opinion, with no explanation how he reached it. Civil
cases require evidence of a lesser degree than criminal cases, but one sentence by one who did not even
witness an event, is not conclusive proof.
...
There was only the fact of the collision before the trial court. The attendant circumstances were not
established, and no fault could be determined using the evidence, both testimonial and documentary
presented.16
Contrary to the above conclusion of the appellate court, the evidence on record coupled with the doctrine of res
ipsa loquitur sufficiently establishes Ong’s negligence.
We focus first on the evidence presented before the trial court.
The photographs of the accident which the appellate court cavalierly brushed aside as insignificant deserve
substantial cogitation. In Jose v. Court of Appeals,17 we upheld the trial court’s reliance on photographs of the
accident as opposed to a party’s obviously biased testimony. In so doing, we stated:
In criminal cases such as murder or rape where the accused stands to lose his liberty if found guilty, this Court
has, in many occasions, relied principally upon physical evidence in ascertaining the truth. In People v.
Vasquez,18 where the physical evidence on record ran counter to the testimonial evidence of the prosecution
witnesses, we ruled that the physical evidence should prevail.19
Physical evidence is a mute but an eloquent manifestation of truth which ranks high in our hierarchy of
trustworthy evidence.20
In this case, while there is a dearth of testimonial evidence to enlighten us about what actually happened,
photographs21 depicting the relative positions of the vehicles immediately after the accident took place do
exist. It is well established that photographs, when duly verified and shown by extrinsic evidence to be faithful
representations of the subject as of the time in question, are, in the discretion of the trial court, admissible in
evidence as aids in arriving at an understanding of the evidence, the situation or condition of objects or
premises or the circumstances of an accident.22
According to American courts, photographs are admissible in evidence in motor vehicle accident cases when
they appear to have been accurately taken and are proved to be a faithful and clear representation of the
subject, which cannot itself be produced, and are of such nature as to throw light upon a disputed point.23
Before a photograph may be admitted in evidence, however, its accuracy or correctness must be proved, and it
must be authenticated or verified24 first. In the case at bar, the photographer testified in open court and
properly identified the pictures as the ones he took at the scene of the accident.25
An examination of said photographs clearly shows that the road where the mishap occurred is marked by a line
at the center separating the right from the left lane. Based on the motorist’s right of way rule, the Isuzu truck
which was headed towards Norzagaray, Bulacan26 should have been occupying the left lane while the private
jeepney which was traversing the road to the town proper of Sta. Maria, Bulacan27 should have been in the
right lane. Exhibits "L" and "L-4" among the photographs, however, reveal that in the aftermath of the collision,
the Isuzu truck usurped the opposite lane to such an extent that only its right rear wheel remained in the left
lane, a few inches from the demarcation line. Its two front wheels and left rear wheel were planted squarely on
the private jeepney’s lane and the Isuzu truck had rotated such that its front no longer pointed towards
Norzagaray but partially faced the town proper of Sta. Maria instead.
While ending up at the opposite lane is not conclusive proof of fault in automobile collisions, the position of the
two vehicles gives rise to the conclusion that it was the Isuzu truck which hit the private jeepney rather than the
other way around. The smashed front of the Isuzu truck is pressed against the private jeepney’s left front
portion near the driver’s side. The private jeepney is positioned diagonally in the right lane; its front at the
rightmost corner of the road while its rear remained a few feet from the demarcation line. Based on the angle at
which it stopped, the private jeepney obviously swerved to the right in an unsuccessful effort to avoid the Isuzu
truck. This would support the statement of the police investigator that the Isuzu truck lost control28 and hit the
left front portion of the private jeepney.29 It would also explain why the driver of the private jeepney died
immediately after being brought to the hospital,30 since in such a scenario, the brunt of the collision logically
bore down on him.
Moreover, the unequal size and weight of the two vehicles would make it improbable for the relatively lighter
private jeepney to have stricken the heavier truck with such force as to push the latter to the former’s side of
the road. Had that been the case, the two vehicles would have ended up crushed together at the center of the
road or at the Isuzu truck’s lane instead of rolling to a stop at the private jeepney’s lane.
Another piece of evidence which supports a finding of negligence against Ong is the police report of the
incident denoted as Entry No. 04-229 of the Sta. Maria Police Station. The report states that the Isuzu truck
was the one which hit the left front portion of the private jeepney.31 This piece of evidence was disregarded by
the Court of Appeals on the ground that entries in police blotters should not be given significance or probative
value as they do not constitute conclusive proof of the truth thereof.
While true in most instances, it must still be remembered that although police blotters are of little probative
value, they are nevertheless admitted and considered in the absence of competent evidence to refute the facts
stated therein.32 Entries in police records made by a police officer in the performance of the duty especially
enjoined by law are prima facie evidence of the fact therein stated,33 and their probative value may be either
substantiated or nullified by other competent evidence.34
In this case, the police blotter was identified and formally offered as evidence and the person who made the
entries thereon was likewise presented in court. On the other hand, aside from a blanket allegation that the
driver of the other vehicle was the one at fault, respondents did not present any evidence to back up their
charge and show that the conclusion of the police investigator was false. Given the paucity of details in the
report, the investigator’s observation could have been easily refuted and overturned by respondents through
the simple expedient of supplying the missing facts and showing to the satisfaction of the
court that the Isuzu truck was blameless in the incident. Ong was driving the truck while the two other truck
helpers also survived the accident. Any or all of them could have given their testimony to shed light on what
actually transpired, yet not one of them was presented to substantiate the claim that Ong was not negligent.
Since respondents failed to refute the contents of the police blotter, the statement therein that the Isuzu truck
hit the private jeepney and not the other way around is deemed established. The prima facie nature of the
police report ensures that if it remains unexplained or uncontradicted, it will be sufficient to establish the facts
posited therein.35
While not constituting direct proof of Ong’s negligence, the foregoing pieces of evidence justify the application
of res ipsa loquitur, a Latin phrase which literally means "the thing or the transaction speaks for itself."36
Res ipsa loquitur recognizes that parties may establish prima facie negligence without direct proof, thus, it
allows the principle to substitute for specific proof of negligence.37 It permits the plaintiff to present along with
proof of the accident, enough of the attending circumstances to invoke the doctrine, create an inference or
presumption of negligence and thereby place on the defendant the burden of proving that there was no
negligence on his part.38
The doctrine can be invoked only when under the circumstances, direct evidence is absent and not readily
available.39 This is based in part upon the theory that the defendant in charge of the instrumentality which
causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it while the
plaintiff has no such knowledge, and is therefore compelled to allege negligence in general terms and rely
upon the proof of the happening of the accident in order to establish negligence.40 The inference which the
doctrine permits is grounded upon the fact that the chief evidence of the true cause, whether culpable or
innocent, is practically accessible to the defendant but inaccessible to the injured person.41
In this case, Macalinao could no longer testify as to the cause of the accident since he is dead. Petitioners,
while substituting their son as plaintiff, have no actual knowledge
about the event since they were not present at the crucial moment. The driver of the private jeepney who could
have shed light on the circumstances is likewise dead. The only ones left with knowledge about the cause of
the mishap are the two truck helpers who survived, both employees of Sebastian, and Ong, who is not only
Sebastian’s previous employee but his co-respondent in this case as well. In the circumstances, evidence as to
the true cause of the accident is, for all intents and purposes, accessible to respondents but not to petitioners.
The witnesses left are unlikely to divulge to petitioners what they knew about the cause of the accident if the
same militates against the interest of their employer. This justifies the invocation of the doctrine.
Under local jurisprudence, the following are the requisites for the application of res ipsa loquitur:
(1) The accident is of a kind which ordinarily does not occur in the absence of someone’s negligence;
(2) It is caused by an instrumentality within the exclusive control of the defendant or defendants; and
(3) The possibility of contributing conduct which would make the plaintiff responsible is eliminated.42
We are convinced that all the above requisites are present in the case at bar.
No two motor vehicles traversing opposite lanes will collide as a matter of course unless someone is negligent,
thus, the first requisite for the application of the doctrine is present. Ong was driving the Isuzu truck which, from
the evidence adduced, appears to have precipitated the collision with the private jeepney. Driving the Isuzu
truck gave Ong exclusive management and control over it, a fact which shows that the second requisite is also
present. No contributory negligence could be attributed to Macalinao relative to the happening of the accident
since he was merely a passenger in the Isuzu truck. Respondents’ allegation that Macalinao was guilty of
contributory negligence for failing to take the necessary precautions to ensure his safety while onboard the
truck43 is too specious for belief particularly as respondents did not even present any evidence to prove such
allegation. The last requisite is, therefore, likewise present.
There exists a fourth requisite under American jurisprudence, that is, that the defendant fails to offer any
explanation tending to show that the injury was caused by his or her want of due care.44 In this case, while
respondents claimed that Ong drove cautiously and prudently during the time in question, no evidence was
proffered to substantiate the same. In fact, Ong did not bother to testify to explain his actuations and to show
that he exercised due care when the accident happened, so even this requisite is fulfilled.
All the requisites for the application of the rule of res ipsa loquitur are present, thus a reasonable presumption
or inference of Ong’s negligence arises. In consonance with the effect of the doctrine, the burden of proving
due care at the time in question shifts to respondents. Unfortunately, as previously discussed, aside from
blanket allegations that Ong exercised prudence and due care while driving on the day of the accident,
respondents proffered no other proof. As a consequence, the prima facie finding of negligence against Ong,
remaining unexplained and/or uncontradicted, is deemed established. This in turn warrants a finding that Ong
is liable for damages to petitioners.
Such liability of Ong is solidary with Sebastian pursuant to Art. 2176 in relation to Art. 2180 of the Civil Code
which 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 . . . .
Art. 2180. The obligation imposed by Art. 2176 is demandable not only for one’s own acts or omissions but
also for those of persons for whom one is responsible.
...
Employers shall be liable for the damage 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.
...
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.
Whenever an employee’s negligence causes damage or injury to another, there instantly arises a presumption
juris tantum that the employer failed to exercise diligentissimi patris families in the selection (culpa in eligiendo)
or supervision (culpa in vigilando) of its employees.45 To avoid liability for a quasi-delict committed by his
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.46
In an attempt to exculpate himself from liability, Sebastian claimed that he exercised due care in selecting Ong
as a driver. Before he hired Ong, he allegedly required him to produce police and NBI clearances and he took
into account the recommendations of Ong’s previous employer and friends.47 Sebastian also stressed that he
instructed Ong to drive slowly and carefully and to take necessary precautions.48 He likewise admonished
Ong to be careful after the latter had some minor accidents in the parking area.49
However, Sebastian’s statements are not sufficient to prove that he exercised the diligence of a good father of
a family in the selection of Ong. His testimony is self-serving and devoid of corroboration as he did not bother
to support the same with document evidence. Moreover, Sebastian could not even remember whether the
recommendation from Ong’s previous employer was made verbally or in writing.50
On the other hand, due diligence in supervision requires the formulation of rules and regulations for the
guidance of employees and the issuance of proper instructions as well as actual implementation and
monitoring of consistent compliance with the rules.51 Admonitions to drive carefully without the corresponding
guidelines and monitoring of the employee do not satisfy the due diligence required by law either.
In short, Sebastian’s claims fall short of what is required by law to overcome the presumption of negligence in
the selection and supervision of his employee. The trial court therefore correctly held him solidarily liable with
Ong to petitioners.
In an obvious ploy to relieve himself from liability should the appellate court’s decision be reversed, Sebastian
averred that Macalinao is not entitled to damages. He anchored his claim on the novel argument that the
provisions of Art. 2180 apply only when the injured party is a third person but it has no application to an
employee like Macalinao.52 He likewise postulated that recovery from the Social Security System, State
Insurance Fund, Employee’s Compensation Commission, and the Philippine Medical Care Act, the government
agencies with which petitioners filed a claim in view of Macalinao’s injury and subsequent death, preclude
pursuing alternate recourse or recovering from other sources until the former claims have been rejected.53
Sebastian is grasping at straws. Art. 2180 makes no distinction whatsoever whether the claimant is an
employee or a third person relative to the employer. Ubi lex non distinguit nec nos distinguere debemos.
Where the law does not distinguish, neither should we.54
Moreover, petitioner’s claim against Sebastian is not based upon the fact of Macalinao’s previous employment
with him but on the solidary liability of the latter for the negligent act of one of his employees. Such is not
precluded by prior claims with the government agencies enumerated. One is based on compulsory coverage of
government benefits while the other is based on a cause of action provided by law.
Additionally, respondents postulated that since it was Macalinao who sustained physical injuries and died, he
was the one who suffered pain, not petitioners so moral damages are not recoverable in this case.55
The relatives of the victim who incurred physical injuries in a quasi-delict are not proscribed from recovering
moral damages in meritorious cases. To hold otherwise would give rise to the ridiculous scenario where a
defendant may be compelled to pay moral damages in a quasi-delict causing physical injuries but will be
relieved from doing so should those same injuries cause the victim’s death.
In the case of Lambert v. Heirs of Ray Castillon,56 we held that in quasi-delicts:
. . . . the award of moral damages is aimed at a restoration, within the limits possible, of the spiritual status quo
ante; and therefore, it must be proportionate to the suffering inflicted. The intensity of the pain experienced by
the relatives of the victim is proportionate to the intensity of affection for him and bears no relation whatsoever
with the wealth or means of the offender.57 (Emphasis Supplied.)
The trial court awarded moral damages in the amount of ₱30,000.00 but since prevailing jurisprudence has
fixed the same at ₱50,000.00,58 there is a need to increase the award to reflect the recent rulings.
Lastly, respondents claim that exemplary damages is not warranted in this case. Under the law, exemplary
damages may be granted in quasi-delicts if the defendant acted with gross negligence.59 Gross negligence
has been defined as negligence characterized by the want of even slight care, acting or omitting to act in a
situation where there is duty to act, not inadvertently but willfully and intentionally, with a conscious indifference
to consequences insofar as other persons may be affected.60
Ong’s gross negligence in driving the Isuzu truck precipitated the accident. This is lucidly portrayed in the
photographs on record and it justifies the award of exemplary damages in petitioners’ favor. However, the trial
court’s award of ₱10,000.00 is insufficient, thus the Court deems it proper to increase the award to ₱25,000.00
under the circumstances.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated 31 May 2000, as well as
its Resolution dated 7 September 2000, are hereby SET ASIDE. The Decision of the Regional Trial Court of
Quezon City, Branch 81 dated 12 April 1996 as amended by the Order dated 23 May 1996 is hereby
REINSTATED with the modifications that the award for moral damages is increased to ₱50,000.00 to conform
with prevailing jurisprudence and the award for exemplary damages is increased to ₱25,000.00. Costs against
respondents.
SO ORDERED.
G.R. No. L-5691 December 27, 1910
S. D. MARTINEZ and his wife, CARMEN ONG DE MARTINEZ, plaintiffs-appellees,
vs.
WILLIAM VAN BUSKIRK, defendant-appellant.
MORELAND, J.:
The facts found by the trial court are undisputed by either party in this case. They are —
That on the 11th day of September, 1908, the plaintiff, Carmen Ong de Martinez, was riding in a carromata on
Calle Real, district of Ermita, city of Manila, P.I., along the left-hand side of the street as she was going, when a
delivery wagon belonging to the defendant used for the purpose of transportation of fodder by the defendant,
and to which was attached a pair of horses, came along the street in the opposite direction to that the in which
said plaintiff was proceeding, and that thereupon the driver of the said plaintiff's carromata, observing that the
delivery wagon of the defendant was coming at great speed, crowded close to the sidewalk on the left-hand
side of the street and stopped, in order to give defendant's delivery wagon an opportunity to pass by, but that
instead of passing by the defendant's wagon and horses ran into the carromata occupied by said plaintiff with
her child and overturned it, severely wounding said plaintiff by making a serious cut upon her head, and also
injuring the carromata itself and the harness upon the horse which was drawing it.
xxx
xxx
xxx
These facts are not dispute, but the defendant presented evidence to the effect that the cochero, who was
driving his delivery wagon at the time the accident occurred, was a good servant and was considered a safe
and reliable cochero; that the delivery wagon had sent to deliver some forage at Paco Livery Stable on Calle
Herran, and that for the purpose of delivery thereof the cochero driving the team as defendant's employee tied
the driving lines of the horses to the front end of the delivery wagon and then went back inside of the wagon for
the purpose of unloading the forage to be delivered; that while unloading the forage and in the act of carrying
some of it out, another vehicle drove by, the driver of which cracked a whip and made some other noises,
which frightened the horses attached to the delivery wagon and they ran away, and the driver was thrown from
the inside of the wagon out through the rear upon the ground and was unable to stop the horses; that the
horses then ran up and on which street they came into collision with the carromata in which the plaintiff,
Carmen Ong de Martinez, was riding.
The defendant himself was not with the vehicle on the day in question.
Upon these facts the court below found the defendant guilty of negligence and gave judgment against him for
P442.50, with interest thereon at the rate of 6 per cent per annum from the 17th day of October, 1908, and for
the costs of the action. The case is before us on an appeal from that judgment.
There is no general law of negligence in the Philippine Islands except that embodied in the Civil Code. The
provisions of that code pertinent to this case are —
Art. 1902. 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.
Art. 1903. The obligation imposed by 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.
Guardians are liable for the damages caused by minors or incapacitated persons who are under their authority
and live with them.
Owners of directors of an establishment or enterprise are equally liable for the damages caused by the
employees in the service of the branches in which the latter may be employed or on account of their duties.
The State is liable in this sense when it acts through a special agent, but not when the damages should have
been caused by the official to whom properly it pertained to do the act performed, in which case the provisions
of the preceding article shall be applicable.
Finally, masters or directors of arts and trades are liable for the damages caused by their pupils or apprentices
while they are under their custody.
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 damage.
Passing the question whether or not an employer who has furnished a gentle and tractable team and a trusty
and capable driver is, under the last paragraph of the above provisions, liable for the negligence of such driver
in handling the team, we are of the opinion that the judgment must be reversed upon the ground that the
evidence does not disclose that the cochero was negligent.
While the law relating to negligence in this jurisdiction may possibly be some what different from that in
Anglo-Saxon countries, a question we do not now discuss, the rules under which the fact of negligence is
determined are, nevertheless, generally the same. That is to say, while the law designating the person
responsible for a negligent act may not be the same here as in many jurisdictions, the law determining what is
a negligent act is the same here, generally speaking, as elsewhere. (Supreme court of Spain, 4 December,
1903; 16 May, 1893; 27 June, 1894; 9 April, 1896; 14 March, 1901; 2 March, 1904; 7 February, 1905; 16 June,
1905; 23 June, 1905; 13 April, 1903; 7 March, 1902; 12 June, 1900; 2 March, 1907; 18 March, 1898; 3 June,
1901.)
It appears from the undisputed evidence that the horses which caused the damage were gentle and tractable;
that the cochero was experienced and capable; that he had driven one of the horses several years and the
other five or six months; that he had been in the habit, during all that time, of leaving them in the condition in
which they were left on the day of the accident; that they had never run away up to that time and there had
been, therefore, no accident due to such practice; that to leave the horses and assist in unloading the
merchandise in the manner described on the day of the accident was the custom of all cochero who delivered
merchandise of the character of that which was being delivered by the cochero of the defendant on the day in
question, which custom was sanctioned by their employers.
In our judgment, the cochero of the defendant was not negligent in leaving the horses in the manner described
by the evidence in this case, either under Spanish or American jurisprudence. (Lynch vs. Nurdin, 1 Q. B., 422;
Rumsey vs. Nelson, 58 Vt., 590; Drake vs. Mount, 33 N. J. L., 442; Hoboken Land and Improvement Co. vs.
Lally, 48 N. J. L., 604; Wasmer vs. D. L. & W. R. R. Co., 80 N. Y., 212.) lawphi1.net
In the case of Hayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170), Lord Kenyon said:
He was performing his duty while removing the goods into the house, and, if every person who suffered a cart
to remain in the street while he took goods out of it was obliged to employ another to look after the horses, it
would be impossible for the business of the metropolis to go on.
In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said:
The degree of care required of the plaintiff, or those in charged of his horse, at the time of the injury, is that
which would be exercised by a person of ordinary care and prudence under like circumstances. It can not be
said that the fact of leaving the horse unhitched is in itself negligence. Whether it is negligence to leave a horse
unhitched must be depend upon the disposition of the horse; whether he was under the observation and
control of some person all the time, and many other circumstances; and is a question to be determined by the
jury from the facts of each case.
In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it was error on the part of the trial court to
refuse to charge that "it is not negligence for the driver of a quite, gentle horse to leave him unhitched and
otherwise unattended on the side of a public highways while the driver is upon the sidewalk loading goods on
the wagon." The said court closed its opinion with these words:
There was evidence which could have fully justified the jury in finding that the horse was quite and gentle, and
that the driver was upon the sidewalk loading goods on the wagon, at time of the alleged injury, and that the
horse had been used for years in that way without accident. The refusal of the trial court to charge as
requested left the jury free to find was verdict against the defendant, although the jury was convinced that
these facts were proven.lawphil.net
In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held:
That evidence that a servant, whom traders employed to deliver goods, upon stopping with his horse and
wagon to deliver a parcel at a house from fifty to a hundred rods from a railroad crossing, left the horse
unfastened for four or five minutes while he was in the house, knowing that it was not afraid of cars, and having
used it for three or four months without ever hitching it or knowing it to start, is not conclusive, as a matter of
law, of a want of due care on his part.
The duty, a violation of which is claimed to be negligence in the respect in question, is to exercise reasonable
care and prudence. Where reasonable care is employed in doing an act not itself illegal or inherently likely to
produce damage to others, there will be no liability, although damage in fact ensues. (Milwaukee Ry. Co. vs.
Arms, 91 U. S., 489; Parrott vs. Wells, 15 Wall., 524; Brown vs. Kendall, 6 Cushing, 292; Jackson Architectural
Iron Works vs. Hurlbut, 158 N. Y., 34 Westerfield vs. Levis, 43 La. An., 63; Niosi vs. Empire Steam Laundry,
117 Cal., 257.)
The act of defendant's driver in leaving the horses in the manner proved was not unreasonable or imprudent.
Acts the performance of which has not proved destructive or injurious and which have, therefore, been
acquiesced in by society for so long a time that they have ripened into custom, can not be held to be
themselves unreasonable or imprudent. Indeed the very reason why they have been permitted by society is
that they beneficial rather than prejudicial.itc-alf Accidents sometimes happen and injuries result from the most
ordinary acts of life. But such are not their natural or customary results. To hold that, because such an act once
resulted in accident or injury, the actor is necessarily negligent, is to go far. The fact that the doctrine of res ipsa
loquitur is sometimes successfully invoked in such a case, does not in any sense militate against the reasoning
presented. That maxim at most only creates a prima facie case, and that only in the absence of proof of the
circumstances under which the act complained of was performed. It is something invoked in favor of the
plaintiff before defendant's case showing the conditions and circumstances under which the injury occurred,
the creative reason for the doctrine of res ipsa loquitur disappears. This is demonstrated by the case of Inland
and Seaboard Costing Co. vs. Tolson (139 U.S., 551), where the court said (p. 554):
. . . The whole effect of the instruction in question, as applied to the case before the jury, was that if the
steamboat, on a calm day and in smooth water, was thrown with such force against a wharf properly built, as to
tear up some of the planks of the flooring, this would be prima facie evidence of negligence on the part of the
defendant's agent in making the landing, unless upon the whole evidence in the case this prima facie evidence
was rebutted. As such damage to a wharf is not ordinarily done by a steamboat under control of her officers
and carefully managed by them, evidence that such damage was done in this case was prima facie, and, if
unexplained, sufficient evidence of negligence on their part, and the jury might properly be so instructed.
There was presented in this case, and by the plaintiffs themselves, not only the fact of the runway and the
accident resulting therefrom, but also the conditions under which the runaway occurred. Those conditions
showing of themselves that the defendant's cochero was not negligent in the management of the horse, the
prima facie case in plaintiffs' favor, if any, was destroyed as soon as made.
It is a matter of common knowledge as well as proof that it is the universal practice of merchants to deliver
merchandise of the kind of that being delivered at the time of the injury, in the manner in which that was then
being delivered; and that it is the universal practice to leave the horses in the manner in which they were left at
the time of the accident. This is the custom in all cities. It has not been productive of accidents or injuries. The
public, finding itself unprejudiced by such practice, has acquiesced for years without objection. Ought the
public now, through the courts, without prior objection or notice, to be permitted to reverse the practice of
decades and thereby make culpable and guilty one who had every reason and assurance to believe that he
was acting under the sanction of the strongest of all civil forces, the custom of a people? We think not.
The judgement is reversed, without special finding as to costs. So ordered.
G.R. No. 73998 November 14, 1988
PEDRO T. LAYUGAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and TRAVELLERS MULTI-INDEMNITY
CORPORATION, respondents.
Edralin S. Mateo for petitioner.
Orlando L. Espinas for respondent Travellers Multi-Indemnity Corp.
Roberto T. Vallarta for respondent Godofredo Isidro.
SARMIENTO, J.:
Assailed in this petition for review on certiorari are 1) the decision 1 of the then Intermediate Appellate Court 2
in AC-G.R. CV No. 01055, entitled "Pedro T. Layugan, Plaintiff-Appellee, versus Godofredo Isidro,
Defendant-Appellant and Third-Party Plaintiff-Appellee, versus Travellers Multi-Indemnity Corporation, Third
Party Defendant- Appellant, "which reversed and set aside the decision 3 of the Regional Trial Court, Third
Judicial Region, Branch XXVI, Cabanatuan City, and also dismissed the complaint, third party complaint, and
the counter claims of the parties and 2) the resolution 4 denying the plaintiff-appellee's (herein petitioner)
motion for reconsideration, for lack of merit.
The findings of fact by the trial court which were adopted by the appellate court are as follows: 5
xxx xxx xxx
Pedro T. Layugan filed an action for damages against Godofredo Isidro, alleging that on May 15, 1979 while at
Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a companion were repairing the tire of their cargo truck
with Plate No. SU-730 which was parked along the right side of the National Highway; that defendant's truck
bearing Plate No. PW-583, driven recklessly by Daniel Serrano bumped the plaintiff, that as a result, plaintiff
was injured and hospitalized at Dr. Paulino J. Garcia Research and Medical Center and the Our Lady of
Lourdes Hospital; that he spent TEN THOUSAND PESOS (Pl0,000.00) and will incur more expenses as he
recuperates from said injuries; that because of said injuries he would be deprived of a lifetime income in the
sum of SEVENTY THOUSAND PESOS (P70,000.00); and that he agreed to pay his lawyer the sum of TEN
THOUSAND PESOS (Pl0,000.00).
As prayed for by the plaintiffs counsel, the Court declared the defendant in default on October 12, 1979, and
plaintiff's evidence was received ex-parte on January 11, 1978 and February 19, 1980. The decision on behalf
of the plaintiff was set aside to give a chance to the defendant to file his answer and later on, a third-party
complaint.
Defendant admitted his ownership of the vehicle involved in the accident driven by Daniel Serrano. Defendant
countered that the plaintiff was merely a bystander, not a truck helper being a brother-in-law law of the driver of
said truck; that the truck allegedly being repaired was parked, occupying almost half of the right lane towards
Solano, Nueva Vizcaya, right after the curve; that the proximate cause of the incident was the failure of the
driver of the parked truck in installing the early warning device, hence the driver of the parked car should be
liable for damages sustained by the truck of the herein defendant in the amount of more than P20,000.00; that
plaintiff being a mere bystander and hitchhiker must suffer all the damages he incurred. By way of counterclaim
defendant alleged that due to plaintiffs baseless complaint he was constrained to engage the services of
counsel for P5,000.00 and P200.00 per court appearance; that he suffered sleepless nights, humiliation,
wounded feelings which may be estimated at P30.000.00.
On May 29, 1981, a third-party complaint was filed by the defendant against his insurer, the Travellers Multi
Indemnity Corporation; that the third-party plaintiff, without admitting his liability to the plaintiff, claimed that the
third-party defendant is liable to the former for contribution, indemnity and subrogation by virtue of their
contract under Insurance Policy No. 11723 which covers the insurer's liability for damages arising from death,
bodily injuries and damage to property.
Third-party defendant answered that, even assuming that the subject matter of the complaint is covered by a
valid and existing insurance policy, its liability shall in no case exceed the limit defined under the terms and
conditions stated therein; that the complaint is premature as no claim has been submitted to the third party
defendant as prescribed under the Insurance Code; that the accident in question was approximately caused by
the carelessness and gross negligence of the plaintiff-, that by reason of the third-party complaint, third-party
defendant was constrained to engage the services of counsel for a fee of P3,000.00.
Pedro Layugan declared that he is a married man with one (1) child. He was employed as security guard in
Mandaluyong, Metro Manila, with a salary of SIX HUNDRED PESOS (600.00) a month. When he is off-duty, he
worked as a truck helper and while working as such, he sustained injuries as a result of the bumping of the
cargo truck they were repairing at Baretbet, Bagabag, Nueva Vizcaya by the driver of the defendant. He used
to earn TWO HUNDRED PESOS (P200.00) to THREE HUNDRED PESOS (P300.00) monthly, at the rate of
ONE HUNDRED PESOS (Pl00.00) per trip. Due to said injuries, his left leg was amputated so he had to use
crutches to walk. Prior to the incident, he supported his family sufficiently, but after getting injured, his family is
now being supported by his parents and brother.
GODOFREDO ISIDRO, defendant/third-party plaintiff, testified that his truck involved in this vehicular accident
is insured with the Travellers Multi Indemnity Corporation covering own damage and third-party liability, under
vehicle policy No. 11723 (Exh. "1") dated May 30, 1978; that after he filed the insurance claim the insurance
company paid him the sum of P18,000.00 for the damages sustained by this truck but not the third party
liability.
DANIEL SERRANO, defendant driver, declared that he gave a statement before the municipal police of
Bagabag, Nueva Vizcaya on May 16, 1979; that he knew the responsibilities of a driver; that before leaving, he
checked the truck. The truck owner used to instruct him to be careful in driving. He bumped the truck being
repaired by Pedro Layugan, plaintiff, while the same was at a stop position. From the evidence presented, it
has been established clearly that the injuries sustained by the plaintiff was caused by defendant's driver, Daniel
Serrano. The police report confirmed the allegation of the plaintiff and admitted by Daniel Serrano on
cross-examination. The collision dislodged the jack from the parked truck and pinned the plaintiff to the ground.
As a result thereof, plaintiff sustained injuries on his left forearm and left foot. The left leg of the plaintiff from
below the knee was later on amputated (Exh. "C") when gangrene had set in, thereby rendering him
incapacitated for work depriving him of his income. (pp. 118 to 120, Record on Appeal.)
xxx xxx xxx
Upon such findings, amply supported by the evidence on record, the trial court rendered its decision, the
dispositive part of which reads as follows: 6
WHEREFORE, premises considered, the defendant is hereby ordered:
a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00) PESOS actual and compensatory damages;
b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees;
c) FIVE THOUSAND (P5,000.00) PESOS for moral damages; and
d) To pay the costs of this suit. On the third-party complaint, the third-party defendant is ordered to indemnify
the defendant/third party plaintiff-.
a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual and compensatory damages; and
b) The costs of this suit.
The Intermediate Appellate Court as earlier stated reversed the decision of the trial court and dismissed the
complaint, the third-party complaint, and the counter- claims of both appellants. 7
Hence, this petition.
The petitioner alleges the following errors. 8
1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE APPELLATE COURT ACTED CORRECTLY
IN REVERSING AND SETTING ASIDE AND DISMISSING THE PLAINTIFF-APPELLEE'S COMPLAINT.
2. WHETHER THE INTERMEDIATE APPELLATE COURT ACTED CORRECTLY IN APPLYING THE
DOCTRINE OF "RES IPSA LOQUITUR" WITH PROPER JURIS- PRUDENTIAL (sic) BASIS.
The crux of the controversy lies in the correctness or error of the decision of the respondent court finding the
petitioner negligent under the doctrine of Res ipsa loquitur (The thing speaks for itself).<äre||anº•1àw>
Corollary thereto, is the question as to who is negligent, if the doctrine is inapplicable.
The respondent corporation stresses that the issues raised in the petition being factual, the same is not
reviewable by this Court in a petition for review by certiorari. 9
Indeed, it is an elementary rule in the review of decisions of the Court of Appeals that its findings of fact are
entitled to great respect and will not ordinarily be disturbed by this Court. 10 For if we have to review every
question of fact elevated to us, we would hardly have any more time left for the weightier issues compelling
and deserving our preferential attention.11 Be that as it may, this rule is not inflexible. Surely there are
established exceptions 12 —when the Court should review and rectify the findings of fact of the lower court,
such as:
1) when the conclusion is a finding grounded entirely on speculation, surmise, or conjecture; 2) the inference
made is manifestly mistaken; 3) there is grave abuse of discretion; 4) the judgment is based on
misapprehension of facts; 5) the Court of Appeals went beyond the issues of the case if the findings are
contrary to the admission of both the appellant and the appellee; 6) the findings of the Court of Appeals are
contrary to those of the trial court; 7) the said findings of fact are conclusions without citation of specific
evidence on which they are based; 8) the facts set forth in the petition as well as in the petitioner's main and
reply briefs are not disputed by the respondents; and 9) when the findings of fact of the Court of Appeals are
premised on the absence of evidence and are contradicted on record.
Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a deviation from the general rule.
From its finding that the parked truck was loaded with ten (10) big round logs 13 the Court of Appeals inferred
that because of its weight the truck could not have been driven to the shoulder of the road and concluded that
the same was parked on a portion of the road 14 at the time of the accident. Consequently, the respondent
court inferred that the mishap was due to the negligence of the driver of the parked truck.15 The inference or
conclusion is manifestly erroneous. In a large measure, it is grounded on speculation, surmise, or conjecture.
How the respondent court could have reversed the finding of the trial court that a warning device was installed
16 escapes us because it is evident from the record that really such a device, in the form of a lighted kerosene
lamp, was installed by the driver of the parked truck three to four meters from the rear of his parked truck.17
We see this negative finding of the respondent appellate court as a misreading of the facts and the evidence
on record and directly contravening the positive finding of the trial court that an early warning device was in
proper place when the accident happened and that the driver of the private respondent was the one negligent.
On the other hand, the respondent court, in refusing to give its "imprimatur to the trial court's finding and
conclusion that Daniel Serrano (private respondent Isidro's driver) was negligent in driving the truck that
bumped the parked truck", did not cite specific evidence to support its conclusion. In cavalier fashion, it simply
and nebulously adverted to unspecified "scanty evidence on record." 18
On the technical aspect of the case, the respondent corporation would want us to dismiss this petition on the
ground that it was filed out of time. It must be noted that there was a motion for extension, 19 albeit filed
erroneously with the respondent court, dated March 19, 1986, requesting for 30 days from March 20, 1986, to
file the necessary petition or pleading before the Supreme Court". Also, on April 1, 1986, an appearance of a
new lawyer for the petitioner before the Supreme Court" with motion 20 was filed, again erroneously, with the
Court of Appeals, requesting for 20 days extension "to file the Petition for Review on Certiorari." Likewise a
similar motion 21 was filed with this Court also on April 1, 1986. On the other hand, the instant petition for
review was filed on April 17, 1986 22 but it was only after three months, on August 1, 1986, in its comment 23
that the respondent corporation raised the issue of tardiness. The respondent corporation should not have
waited in ambush before the comment was required and before due course was given. In any event, to exact
its "a pound of flesh", so to speak, at this very late stage, would cause a grave miscarriage of justice.
Parenthetically, it must be noted that private respondent Isidro did not raise this issue of late filing.
We now come to the merits of this petition.
The question before us is who was negligent? 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 do24 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.25
In Picart vs. Smith, 26 decided more than seventy years ago but still a sound rule, we 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. 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.
Respondent Isidro posits that any immobile object along the highway, like a parked truck, poses serious danger
to a moving vehicle which has the right to be on the highway. He argues that since the parked cargo truck in
this case was a threat to life and limb and property, it was incumbent upon the driver as well as the petitioner,
who claims to be a helper of the truck driver, to exercise extreme care so that the motorist negotiating the road
would be properly forewarned of the peril of a parked vehicle. Isidro submits that the burden of proving that
care and diligence were observed is shifted to the petitioner, for, as previously claimed, his (Isidro's) Isuzu truck
had a right to be on the road, while the immobile cargo truck had no business, so to speak, to be there.
Likewise, Isidro proffers that the petitioner must show to the satisfaction of a reasonable mind that the driver
and he (petitioner) himself, provided an early warning device, like that required by law, or, by some other
adequate means that would properly forewarn vehicles of the impending danger that the parked vehicle posed
considering the time, place, and other peculiar circumstances of the occasion. Absent such proof of care, as in
the case at bar, Isidro concludes, would, under the doctrine of Res ipsa loquitur, evoke the presumption of
negligence on the part of the driver of the parked cargo truck as well as his helper, the petitioner herein, who
was fixing the flat tire of the said truck. 27
Respondent Isidro's contention is untenable.
The evidence on record discloses that three or four meters from the rear of the parked truck, a lighted
kerosene lamp was placed.28 Moreover, there is the admission of respondent Isidro's driver, Daniel Serrano, to
Wit: 29
Question No. 8 (by Patrolman Josefino Velasco)—Will you narrate to me in brief how the accident happens
(sic) if you can still remember?
Answer: (by Daniel Serrano)
That on or about 10:40 p.m., 15 May 1979 while driving Isuzu truck at Baretbet, Bagabag, Nueva Vizcaya and
at KM 285, I met another vehicle who (sic) did not dim his (sic) lights which cause (sic) me to be blinded with
intense glare of the light that's why I did not notice a parked truck who (sic) was repairing a front flat tire. When
I was a few meters away, I saw the truck which was loaded with round logs. I step (sic) on my foot brakes but it
did not function with my many attempts. I have (sic) found out later that the fluid pipe on the rear right was cut
that's why the breaks did not function. (Emphasis supplied).
Whether the cargo truck was parked along the road or on half the shoulder of the right side of the road would
be of no moment taking into account the warning device consisting of the lighted kerosene lamp placed three
or four meters from the back of the truck. 30 But despite this warning which we rule as sufficient, the Isuzu
truck driven by Daniel Serrano, an employee of the private respondent, still bumped the rear of the parked
cargo truck. As a direct consequence of such accident the petitioner sustained injuries on his left forearm and
left foot. His left leg was later amputated from below the knee when gangrene had set in. 31
It is clear from the foregoing disquisition that the absence or want of care of Daniel Serrano has been
established by clear and convincing evidence. It follows that in stamping its imprimatur upon the invocation by
respondent Isidro of the doctrine of Res ipsa loquitur to escape liability for the negligence of his employee, the
respondent court committed reversible error.
The respondent court ruled: 32
xxx xxx xxx
In addition to this, we agree with the following arguments of appellant Godofredo Isidro which would show that
the accident was caused due to the negligence of the driver of the cargo truck:
xxx xxx xxx
... In the case at bar the burden of proving that care and diligence was (sic) observed is shifted evidently to the
plaintiff, for, as adverted to, the motorists have the right to be on the road, while the immobile truck has no
business, so to speak, to be there. It is thus for the plaintiff to show to the satisfaction of a reasonable mind that
the driver and he himself did employ early warning device such as that required by law or by some other
adequate means or device that would properly forewarn vehicles of the impending danger that the parked
vehicle posed considering the time, place and other peculiar circumstances of the occasion. Absent such proof
of care, as in the case at bar, will evoke the presumption of negligence under the doctrine of res ipsa loquitur,
on the part of the driver of the parked cargo truck as well as plaintiff who was fixing the flat tire of said truck.
(pp. 14-17, Appellant's Brief). (Emphasis supplied).
At this juncture, it may be enlightening and helpful in the proper resolution of the issue of negligence to
examine the doctrine of Res ipsa loquitur.
This doctrine is stated thus: "Where the thing which causes injury is shown to be under the management of the
defendant, and the accident is such as in the ordinary course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, in the absence of an explanation by the
defendant, that the accident arose from want of care. 33 Or as Black's Law Dictionary 34 puts it:
Res ipsa loquitur. The thing speaks for itself Rebuttable presumption or inference that defendant was
negligent, which arises upon proof that instrumentality causing injury was in defendant's exclusive control, and
that the accident was one which ordinarily does not happen in absence of negligence. Res ipsa loquitur is rule
of evidence whereby negligence of alleged wrongdoer may be inferred from mere fact that accident happened
provided character of accident and circumstances attending it lead reasonably to belief that in absence of
negligence it would not have occurred and that thing which caused injury is shown to have been under
management and control of alleged wrongdoer. Hillen v. Hooker Const. Co., Tex. Civ. App., 484 S.W. 2d 133,
155. Under doctrine of "res ipsa loquitur" the happening of an injury permits an inference of negligence where
plaintiff produces substantial evidence that injury was caused by an agency or instrumentality under exclusive
control and management of defendant, and that the occurrence was such that in the ordinary course of things
would not happen if reasonable care had been used.
In this jurisdiction we have applied this doctrine in quite a number of cases, notably in Africa et al. vs. Caltex,
Inc., et al., 35 and the latest is in the case of F.F. Cruz and Co., Inc. vs. CA.36
The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes
that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof
of negligence. 37 The doctrine is not a rule of substantive law 38 but merely a mode of proof or a mere
procedural convenience. 39 The rule, when applicable to the facts and circumstances of a particular case, is
not intended to and does not dispense with the requirement of proof of culpable negligence on the part of the
party charged. 40 It merely determines and regulates what shall be prima facie evidence thereof and facilitates
the burden of plaintiff of proving a breach of the duty of due care.41 The doctrine can be invoked when and
only when, under the circumstances involved, direct evidence is absent and not readily available. 42 Hence, it
has generally been held that the presumption of inference arising from the doctrine cannot be availed of, or is
overcome, where plaintiff has knowledge and testifies or presents evidence as to the specific act of negligence
which is the cause of the injury complained of or where there is direct evidence as to the precise cause of the
accident and all the facts and circumstances attendant on the occurrence clearly appear. 43 Finally, once the
actual cause of injury is established beyond controversy, whether by the plaintiff or by the defendant, no
presumptions will be involved and the doctrine becomes inapplicable when the circumstances have been so
completely eludicated that no inference of defendant's liability can reasonably be made, whatever the source of
the evidence, 44 as in this case.
The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph 5, of the Civil Code. In the
latter, 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 the selection of
the servant or employee, or in supervision over him after selection, or both. Such presumption is juris tantum
and not juris et de jure and consequently, may be rebutted. If follows necessarily that if the employer shows to
the satisfaction of the court that in the selection and in the 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. 45 In disclaiming
liability for the incident, the private respondent stresses that the negligence of his employee has already been
adequately overcome by his driver's statement that he knew his responsibilities as a driver and that the truck
owner used to instruct him to be careful in driving. 46
We do not agree with the private respondent in his submission. In the first place, it is clear that the driver did
not know his responsibilities because he apparently did not check his vehicle before he took it on the road. If
he did he could have discovered earlier that the brake fluid pipe on the right was cut, and could have repaired it
and thus the accident could have been avoided. Moveover, to our mind, the fact that the private respondent
used to intruct his driver to be careful in his driving, that the driver was licensed, and the fact that he had no
record of any accident, as found by the respondent court, are not sufficient to destroy the finding of negligence
of the Regional Trial Court given the facts established at the trial 47 The private respondent or his mechanic,
who must be competent, should have conducted a thorough inspection of his vehicle before allowing his driver
to drive it. In the light of the circumstances obtaining in the case, we hold that Isidro failed to prove that the
diligence of a good father of a family in the supervision of his employees which would exculpate him from
solidary liability with his driver to the petitioner. But even if we concede that the diligence of a good father of a
family was observed by Isidro in the supervision of his driver, there is not an iota of evidence on record of the
observance by Isidro of the same quantum of diligence in the supervision of his mechanic, if any, who would be
directly in charge in maintaining the road worthiness of his (Isidro's) truck. But that is not all. There is paucity of
proof that Isidro exercised the diligence of a good father of a family in the selection of his driver, Daniel
Serrano, as well as in the selection of his mechanic, if any, in order to insure the safe operation of his truck and
thus prevent damage to others. Accordingly, the responsibility of Isidro as employer treated in Article 2180,
paragraph 5, of the Civil Code has not ceased.
WHEREFORE, the petition is hereby GRANTED. The Decision of the respondent court as well as its
Resolution denying the petitioner's motion for reconsideration are hereby SET ASIDE and the decision of the
trial court, dated January 20, 1983, is hereby REINSTATED in toto. With costs against the private respondents.
SO ORDERED.
G.R. No. 121964 June 17, 1997
DRA. ABDULIA RODRIGUEZ, LEONOR PRIETOS, LEONORA RODRIGUEZ NOLASCO, LUZVIMINDA
ANTIG and JUANITA RODRIGUEZ, petitioners,
vs.
COURT OF APPEALS, HARRY VILORIA, MARGARITA MILAGROS VILORIA and JOHN P. YOUNG,
respondents.
DAVIDE, JR. J.:
In this petition for review under Rule 45 of the Rules of Court, petitioners seek reversal of that portion of the 14
March 1995 decision1 of respondent Court of Appeals in CA-G.R. CV No. 362472 dismissing petitioners'
complaint in Civil Case No. CEB-8095 of the Cebu Regional Trial Court, Branch 21. The latter was an action
for damages based on quasi-delict filed by petitioners against private respondents due to a fire which allegedly
started in private respondents' construction site and damaged petitioners' building.
After trial on the merits, the trial court found that the fire was not caused by an instrumentality within the
exclusive control of defendants (private respondents) and rendered a decisions3 against petitioners. The
dispositive portion of the decision reads as follows:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered:
(1) Dismissing plaintiff's complaint;
(2) Condemning plaintiffs to pay defendants,
(a) Moral damages of P500,000 for defendants Vilorias, and moral damages of P200,000 for defendant John P.
Young;
(b) Exemplary damages of P75,000;
(c) Attorney's fees of P30,000
(3) Ordering plaintiffs to pay, jointly and severally, the costs.
SO ORDERED.
Plaintiffs, herein petitioners, appealed from the judgment to respondent Court of Appeals which docketed the
appeal as CA-G.R. CV No. 36247. In asking for the reversal of the judgment they imputed upon the trial court
the commission of the following errors:
I
THE LOWER COURT GRAVELY ERRED IN EVALUATING THE TESTIMONY OF EYEWITNESSES.
II
THE TRIAL COURT ERRED IN NOT ADMITTING IN EVIDENCE THE FIRE INVESTIGATION REPORT
DONE BY THE FIRE DEPARTMENT OFFICIAL.
III
THE TRIAL COURT ERRED IN AWARDING DAMAGES TO DEFENDANTS-APPELLEES (PRIVATE
RESPONDENTS HEREIN).
IV
ASSUMING ARGUENDO THAT DEFENDANTS-APPELLEES COULD LAWFULLY PRESENT EVIDENCE ON
THEIR COUNTERCLAIM, THE TRIAL COURT SERIOUSLY ERRED IN AWARDING ASTRONOMICAL
DAMAGES.
V
THE TRIAL COURT ERRED IN NOT FINDING A CASE FOR DAMAGES IN FAVOR OF PLAINTIFFS
(HEREIN PETITIONERS).5
Respondent Court of Appeals summarized the antecedents in this case as follows:
On March 15, 1989, a fire broke out which razed two apartment buildings, owned by plaintiffs-appellants
Abdulia Rodriguez, Leonora Rodriguez Nolasco and Juanita Rodriguez, and partially destroying a commercial
building.
Plaintiffs-appellants, with co-plaintiffs-appellants Leonora Prietos and Luzviminda Antig who were lessees of
the apartment units, filed a case for damages against defendants-appellees Harry John Viloriam [sic],
Margarita Milagros Viloria, and John P. Young. The complaint alleged that by reason of the gross negligence
and want of care of the construction workers and employees of the defendants-appellees, the bunkhouse or
workers' quarters in the construction site caught fire spreading rapidly, burning the adjacent buildings owned by
plaintiffs-appellants. Due to the negligence of defendants-appellees which resulted in the fire,
plaintiffs-appellants suffered actual damages representing the value of the buildings and other personal
properties.
Defendant-appellee John Young, the building contractor, in his answer, contended that he can not be held
responsible even if there was negligence on the part of the employees for he had exercised the diligence of a
good father of a family in the selection and supervision of his workers. Plaintiffs-appellants had no cause of
action against him. As counterclaim, defendant-appellee Young sought for moral damages in the amount of
P200,000.00, and exemplary damages of P50,000.00 and attorney's fees of P10,000.00.
Defendants-appell[ees] Harry and Margarita Viloria also alleged that plaintiffs-appellants had no cause of
action against them. The fire court not have been caused by gross negligence of their workers for they did not
have any worker in the construction of their building. The said construction was being undertaken by the
independent contractor, John Young, who hired and supervised his own workers. The newly constructed
building was partially destroyed by the fire. As counterclaim, defendants-appell[ees] prayed for moral damages
in the sum of P2,500,000.00, exemplary damages of P100,000.00 and attorney's fees of P20,000.00.
After trial and reception of evidence, the court a quo resolved that the fire was not caused by an instrumentality
within the exclusive control of the defendants-appellants. The decision stated that plaintiffs-appellants failed to
establish that the fire was the result of defendants-appellees' or their workers' negligence.6
Respondent Court of Appeals sustained petitioners only on the third assigned error. Its discussion on the
assigned errors was as follows:
As to the first assigned error, the trial court did not err in the evaluation of the testimonies of the witnesses,
specially in the testimony of applicants' witness, Noel Villarin. It seemed unbelievable that witness Villarin was
able to see Paner pour gasoline on the generator through a five-inch wide hole which was four meters away
from where the former was eating. As pointed out by the appellees how could Villarin see what was going on at
the ground floor which is about ten or eleven feet below. No other witness had testified having seen the same.
No one had even pinpointed the real source of the fire. As it is, the conclusions reached by the trial court which
has the opportunity to observe the witnesses when they testified as to what transpired [is] entitled to full
respect7 is applied. Where the issue is on the credibility of witnesses, generally the findings of a court a quo
will not be disturbed on appeal.8
As to the second assigned error stating that the report was an exception to the hearsay rule is [sic] untenable.
The report was not obtained from informants who had the duty to do so. Even the reporting officer had no
personal knowledge of what actually took place. Admittedly, the said report was merely hearsay as it failed to
comply with the third requisite of admissibility pursuant to Sec. 35, Rule 123, to the effect that a public officer or
other person had sufficient knowledge of the facts by him stated, which must have been acquired by him
personally or through official information.9 To qualify the statements as "official information" acquired by the
officers who prepared the reports, the persons who made the statements not only must have personal
knowledge of the facts stated but must have the duty to give such statements for [the] record. 10
We find the third assigned error to be meritorious. In the absence of a wrongful act or omission or of fraud or
bad faith, moral damages cannot be awarded and that the adverse result of an action does not per se make
the action wrongful and subject the actor to the payment of damages for the law could not have meant to
impose a penalty on the right to litigate. 11 Neither may exemplary damages be awarded where there is no
evidence of the other party having acted in [a] wanton, fraudulent or reckless or oppressive manner. 12 Since
the award of exemplary damages is unwarranted, the award of attorney's fees must necessarily be disallowed.
13 We find the award of damages to be without adequate evidential [sic] basis.
And more, appellants failed to establish that the proximate cause of their loss was due to
defendants-appellees' negligence. Strangely however, it was not even ascertained with definiteness the actual
cause or even source of the fire. In sum, appellants failed to prove that the fire which damaged their apartment
buildings was due to the fault of the appellees.
Considering the foregoing premises, We find as proper the dismissal of the complaint, however, as to the
damages awarded to defendants-appellees, We find no legal basis to grant the same.
In Dela Paz vs. Intermediate Appellate Court, [G.R. No. L-71537, 17 September 1987] it was held that —
The questioned decision, however, is silent as to how the court arrived at these damages. Nowhere in the
decision did the trial court discuss the merit of the damages prayed for by the petitioners. There should be
clear factual and legal bases for any award of considerable damages. 14
The Court of Appeals thus decreed:
ACCORDINGLY, the decision dated September 19, 1991 is hereby AFFIRMED. The award of damages in
favor of defendants-appellees including the award of attorney's fees are hereby DELETED and SET ASIDE. 15
Rebuffed in their bid for reconsideration of the decision, petitioners filed the instant petition, and as grounds
therefor allege that:
I
THE COURT OF APPEALS ERRED IN MISAPPLYING FACTS OF WEIGHT AND SUBSTANCE AFFECTING
THE CASE AT BAR.
II
THE COURT OF APPEALS ERRED IN RULING THAT THE FIRE INVESTIGATION REPORT IS
INADMISSIBLE IN EVIDENCE.
III
THE COURT OF APPEALS ERRED IN RULING THAT SECTION 44, RULE 130 OF THE RULES OF COURT
IS NOT APPLICABLE TO THE CASE AT BAR.
After private respondents filed their respective comments to the petition as required, we resolved to give due
course to the petition and required the parties to submit their respective memoranda, which they subsequently
did.
Under the first assigned error petitioners want us to give full credit to the testimony of Noel Villarin, their
principal witness, who, they claimed, "maintained his straight-forward and undisguised manner of answering
the questions" despite the "intense cross-examination." The trial court, however, refused to believe Villarin, not
only because he had an ulterior motive to testify against private respondent Young, for which reason the trial
court observed:
It may be worth recalling that principal and lone plaintiff's witness Noel Villarin did testify that only during the
hearing did he tell his story about the fire because all his tools were burned, and John Young neither had
replenish [sic] those tools with sympathy on [sic] him nor had visited him in the hospital (supra, p. 4). The
Court, observing Villarin, could only sense the spitful tone in his voice, manifesting released pent-up'ill-will
against defendant Young. 16
but more importantly, because the trial court found that "defendants" witnesses have belied Villarin's word,"
thus:
"Talino" Reville told the Court that it was impossible to see the generator when one was upstairs of the
bunkhouse — "it could not be seen because it was under the floor of the bunkhouse; it was not possible for
Villarin to see it." He was with Villarin eating their supper then, and they were "already through eating but we
were still sitting down" and so, how could Villarin have "peeped" through that "hole on the wall" high above
them? All defendants's [sic] witnesses testified that the generator never caught fire, and no one at all had
heard any explosion anywhere before the fire was discerned. Exhibit 1 (a photograph of the fire while it was
raging) reveals that the bunkhouse was intact.
And Paner — who, said Villarin, brought the gasoline which caught fire from a stove as it was poured by Villarin
to [sic] the generator — was neither impleaded as another defendant nor called as a witness, or charged as an
accused in a criminal action. Which omission also strikes the Court as strange. Such suppression of evidence
gives rise to the presumption that if presented Paner would prove to be adverse to the plaintiffs (by analogy:
People v. Camalog, G.R. 77116, 31 January 1989). 17
The trial court explained why it had to accept the version of defendants' witnesses in this wise:
The Court needs [sic] not suffer a paralysis of analysis as it compares the two conflicting claims. Plaintiffs have
relied so much on their own assessment of the integrity and weight of Villarin's testimony. But the court has
found the same to be, under close scrutiny, not only less weighty but also a piece of evidence that taxes belief.
Villarin said he saw Paner pour the gasoline, this while he and three other fellow-workers were sitting on the
second floor of the bunkhouse and eating their supper, and Villarin elaborated by adding that he saw Paner
doing this through a hole on the wall. What wall? Paner said the hole on the wall was at least four (4) meters
from the floor of the bunkhouse on which they were eating, and he could "peep" through that hole which was
higher than by more than double his height! And he did not reveal all this to the firemen who investigated him.
The credibility of the witness may be affected where he tends to exaggerate, or displays propensity for
needlessly detailed observation (People v. Wong, 23 SCRA 146). 18
One of the highly revered dicta in our jurisprudence is that this Court will not interfere with the judgment of the
trial court in passing on the credibility of opposing witnesses unless there appears in the record some facts or
circumstances of weight and influence which have been overlooked, which, if considered, could affect the
result of the case. The reason therefor is founded on practical and empirical considerations. The trial judge is
in a better position to decide the question of credibility since he personally heard the witnesses and observed
their deportment and manner of testifying. 19 Petitioners have offered no convincing arguments to
accommodate their case within the exception; they did not even dare to refute the above observations and
findings of the trial court.
The second and third assigned error are interrelated, involving the application of Section 44 of Rule 130, which
reads as follows:
Sec. 44. Entries in official records. — Entries in official records made in the performance of his duty by a public
officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie
evidence of the facts therein stated. 20
Petitioners assert that the Fire Investigation Report 21 by an official of the Cebu City Fire Station should have
been admitted in evidence as an exception to the hearsay rule. The trial and appellate courts rejected this
applying Africa v. Caltex (Phil.) Inc., 22 wherein this Court laid down the three requisites for admissibility under
the aforesaid section, viz.:
(1) that the entry was made by a police officer, or by another person especially enjoined by law to do so;
(2) that it was made by the police officer in the performance of his duties, or by such other person in the
performance of a duty especially enjoined by law; and
(3) that the public officer or other person had sufficient knowledge of the facts by him stated, which must have
been acquired by him personally or through official information. 23
Elaborating on the third requisite, this Court further stated that for the statements acquired by the public officer
under the third requisite to qualify as "official information," it is necessary that the persons who gave the
statements "not only must have personal knowledge of the facts stated but must have the duty to give such
statements for record." 24
The Court of Appeals ruled here that the reporting officer who prepared the Fire Investigation Report "had no
personal knowledge of what actually took place;" besides, the information he received did not qualify as "official
information" since those who gave the statements to the reporting officer had no personal knowledge of the
facts stated and no duty to give such statements for the record.
Some confusion surrounds the issue of admissibility of the Fire Investigation Report (Exhibits "A," "A-1" to
"A-4" inclusive). The record discloses that the officer who signed the report, Fire Major Eduardo P. Enriquez,
was subpoenaed at the request of and testified in open court for petitioners. He identified the Report, which
petitioners offered in their Offer of Exhibits 25 as:
(1) Part of the testimony of Major Eduardo P. Enriquez;
(2) To prove that an impartial investigation has determined that the "fire started at the generator . . . within the
construction site" (Exhibit "A-3").
Private respondents objected to Exhibits "A," "A-1" to "A-4," inclusive, for being "hearsay and incompetent
evidence." 26 The trial court then denied their admission "for being hearsay, this fact admitted by witness
himself, F/Maj. Eduardo Enriquez, as part of whose testimony said exhibits were offered." 27
In light of the purposes for which the exhibits in question were offered, as aforestated, the trial court erred in
rejecting all of them as hearsay. Since Major Enriquez himself took the witness stand and was available for
cross-examination, the portions of the report which were of his personal knowledge or which consisted of his
perceptions and conclusions were not hearsay. The rest of the report, such as the summary of the statements
of the parties based on their sworn statements (which were annexed to the Report) as well as the latter, having
been included in the first purpose of the offer, may then be considered as independently relevant statements
which were gathered in the course of the investigation and may thus be admitted as such, but not necessarily
to prove the truth thereof. It has been said that:
Where, regardless of the truth or falsity of a statement, the fact that it has been made is relevant, the hearsay
rule does not apply, but the statement may be shown. Evidence as to the making of such statement is not
secondary but primary, for the statement itself may constitute a fact in issue, or be circumstantially relevant as
to the existence of such a fact. 28
When Major Enriquez took the witness stand, testified for petitioners on his Report and made himself available
for cross-examination by the adverse party, the Report, insofar as it proved that certain utterances were made
(but not their truth), was effectively removed from the ambit of the aforementioned Section 44 of Rule 130.
Properly understood, this section does away with the testimony in open court of the officer who made the
official record, considers the matter as an exception to the hearsay rule and makes the entries in said official
record admissible in evidence as prima facie evidence of the facts therein stated. The underlying reasons for
this exceptionary rule are necessity and trustworthiness, as explained in Antillon v. Barcelon. 29
The litigation is unlimited in which testimony by officials is daily needed; the occasions in which the officials
would be summoned from his ordinary duties to declare as a witness are numberless. The public officers are
few in whose daily work something is not done in which testimony is not needed from official sources. Were
there no exception for official statements, hosts of officials would be found devoting the greater part of their
time to attending as witnesses in court or delivering their deposition before an officer. The work of
administration of government and the interest of the public having business with officials would alike suffer in
consequence. For these reasons, and for many others, a certain verity is accorded such documents, which is
not extended to private documents. (3 Wigmore on Evidence, sec. 1631).
The law reposes a particular confidence in public officers that it presumes they will discharge their several
trusts with accuracy and fidelity; and, therefore, whatever acts they do in discharge of their duty may be given
in evidence and shall be taken to be true under such a degree of caution as the nature and circumstances of
each case may appear to require.
It would have been an entirely different matter if Major Enriquez was not presented to testify on his report. In
that case the applicability of Section 44 of Rule 130 would have been ripe for determination, and this Court
would have agreed with the Court of Appeals that said report was inadmissible since the aforementioned third
requisite was not satisfied. The statements given by the sources of information of Major Enriquez failed to
qualify as "official information," there being no showing that, at the very least, they were under a duty to give
the statements for record.
What appears to us to be the underlying purpose of petitioners in soliciting affirmance of their thesis that the
Report of Major Enriquez should be admitted as an exception to the hearsay rule, is to shift the burden of
evidence to private respondents under the doctrine of res ipsa loquitur in negligence cases. They claim, as
stated in their offer of Exhibits, that "the fire started at the generator. . . within the construction site." This
quotation is based on the penultimate paragraph of page 4 of the Report of Major Enriquez and is obviously
misleading as there is nothing in said paragraph that unequivocally asserts that the generator was located
within the construction site. The paragraph reads:
After analyzing the evidences [sic] and the circumstances underlying the situation, one can easily came [sic] to
the conclusion that the fire started at the generator and extended to the bunkhouse and spread among the
combustible stored materials within the construction site. Among the combustible materials were the plastic
(PVC) pipes and plywoods [sic].
Clearly, the phrase within the construction site could only refer to the immediately preceding term "combustible
stored materials."
The trial court itself concluded that the fire could not have started at the generator and that the bunkhouse was
not burned, thus:
All the defendants's witness testified that the generator never caught fire, and no one at all had heard any
explosion anywhere before the fire was discerned. Exhibit 1 (a photograph of the fire while it was raging
reveals that the bunkhouse was intact. 30 (emphasis supplied)
It then declared that "the fire was not caused by an instrumentality within the exclusive control of defendants,"
31 which is one of the requisites for the application of the doctrine of res ipsa loquitur in the law of negligence.
32 It may further be emphasized that this doctrine is not intended to and does not dispense with the
requirement of proof of culpable negligence on the party charged. It merely determines and regulates what
shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due
care. The doctrine can be invoked when and only when, under the circumstances involved, direct evidence is
absent or not readily available. 33
More damaging to petitioners, which could have been enough reason for them to desist from insisting that the
Report of Major Enriquez be admitted as an exception to the hearsay rule, are the officer's conclusion and
recommendation in his report, viz.:
V. CONCLUSION:
From the foregoing facts and all other evidences [sic] on hand, the investigator discerned that the cause of the
fire was ACCIDENTAL in nature.
VI. RECOMMENDATION:
It is hereby recommended that the investigation of the case shall be closed.
Obviously then, the second and third assigned errors are likewise without merit.
IN VIEW OF THE FOREGOING, the instant petition is DENIED and the challenged decision of respondent
Court of Appeals in CA-G.R CV No. 36247 is AFFIRMED in toto.
Cost against petitioners.
SO ORDERED.