res ipsa loquitor cases in torts.docx

8/11/2019 res ipsa loquitor cases in torts.docx

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G.R. No. 83491 August 27, 1990

MA-AO SUGAR CENTRAL CO., INC. and GUILLERMO ARANETA, petitioners,vs.HON. COURT OF APPEALS and HERMINIA FAMOSO, respondents.

Jalandoni, Herrera, Del Castillo & Associates for petitioners.

Napoleon Corral for private respondent.

CRUZ,J.:

To say the least, the Court views with regret the adamant refusal of petitioner Ma-aoSugar Central to recompense the private respondent for the death of Julio Famoso,

their main source of support, who was killed in line of duty while in its employ. It is notonly a matter of law but also of compassion on which we are called upon to rule today.We shall state at the outset that on both counts the petition must fail.

On March 22, 1980, Famoso was riding with a co-employee in the caboose or"carbonera" of Plymouth No. 12, a cargo train of the petitioner, when the locomotivewas suddenly derailed. He and his companion jumped off to escape injury, but the trainfell on its side, caught his legs by its wheels and pinned him down. He was declareddead on the spot. 1

The claims for death and other benefits having been denied by the petitioner, the herein

private respondent filed suit in the Regional Trial Court of Bago City. Judge MariettaHobilla-Alinio ruled in her favor but deducted from the total damages awarded 25%thereof for the decedent's contributory negligence and the total pension of P41,367.60private respondent and her children would be receiving from the SSS for the next fiveyears. The dispositive portion of the decision read:

WHEREFORE, in view of the foregoing facts and circumstances present in this case, theCourt order, as it does hereby order the defendant Ma-ao Sugar Central thru its ManagerMr. Guillermo Y. Araneta to pay plaintiff the following amount:

P30,000.00 for the death of plaintiff's husband, the lateJulio Famoso

P30,000.00 for actual, exemplary and moral damages

P10,000.00 loss of earnings for twenty (20) years

P3,000.00 funeral expenses


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P73,000.00 Total Damages

Less: P18,250.00 25% for the deceased's contributorynegligence

Less: P41,367.60 pension plaintiff and her minor children would

be receiving for five (5) years from the SSS

Pl3,382.40

Plus: P3,000.00 Attorney's fees and cost of this suit

Pl6,382.40 Total amount payable to the plaintiff.

SO ORDERED.

The widow appealed, claiming that the deductions were illegal. So did the petitioner, buton the ground that it was not negligent and therefore not liable at all.

In its own decision, the Court of Appeals 2sustained the rulings of the trial court exceptas to the contributory negligence of the deceased and disallowed the deductionsprotested by the private respondent. Thus, the respondent court declared:

WHEREFORE, the decision appealed from is MODIFIED by ordering the defendant-appellant to pay the plaintiff-appellee the following amounts:

P30,000.00, for the death of Julio Famoso

P30,000.00, for actual, exemplary and moral damages

P10,000.00, for loss of earnings for twenty (20) years

P3,000.00, for funeral expenses

P3,000.00, for attorney's fees

P76,000.00 Total Amount

========


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In this petition, the respondent court is faulted for finding the petitioner guilty ofnegligence notwithstanding its defense of due diligence under Article 2176 of the CivilCode and for disallowing the deductions made by the trial court.

Investigation of the accident revealed that the derailment of the locomotive was caused

by protruding rails which had come loose because they were not connected and fixed inplace by fish plates. Fish plates are described as strips of iron 8" to 12" long and 3 1/2"thick which are attached to the rails by 4 bolts, two on each side, to keep the railsaligned. Although they could be removed only with special equipment, the fish platesthat should have kept the rails aligned could not be found at the scene of the accident.

There is no question that the maintenance of the rails, for the purpose inter alia ofpreventing derailments, was the responsibility of the petitioner, and that thisresponsibility was not discharged. According to Jose Treyes, its own witness, who wasin charge of the control and supervision of its train operations, cases of derailment in themilling district were frequent and there were even times when such derailments were

reported every hour.

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The petitioner should therefore have taken more prudent steps toprevent such accidents instead of waiting until a life was finally lost because of itsnegligence.

The argument that no one had been hurt before because of such derailments is ofcourse not acceptable. And neither are we impressed by the claim that the brakemenand the conductors were required to report any defect in the condition of the railwaysand to fill out prescribed forms for the purpose. For what is important is that thepetitioner should act on these reports and not merely receive and file them. The fact thatit is not easy to detect if the fish plates are missing is no excuse either. Indeed, it shouldstress all the more the need for the responsible employees of the petitioner to make

periodic checks and actually go down to the railroad tracks and see if the fish plateswere in place.

It is argued that the locomotive that was derailed was on its way back and that it hadpassed the same rails earlier without accident. The suggestion is that the rails wereproperly aligned then, but that does not necessarily mean they were still alignedafterwards. It is possible that the fish plates were loosened and detached during its firsttrip and the rails were as a result already mis-aligned during the return trip. But theCourt feels that even this was unlikely, for, as earlier noted, the fish plates weresupposed to have been bolted to the rails and could be removed only with special tools.The fact that the fish plates were not found later at the scene of the mishap may showthey were never there at all to begin with or had been removed long before.

At any rate, the absence of the fish plateswhatever the cause or reasonis by itselfalone proof of the negligence of the petitioner. Res ipsa loquitur. The doctrine wasdescribed recently in Layugan v. Intermediate Appellate Court, 4thus:

Where the thing which causes injury is shown to be under the management of thedefendant, and the accident is such as in the ordinary course of things does not happen if


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those who have the management use proper care, it affords reasonable evidence, in theabsence of an explanation by the defendant, that the accident arose from want of care.

The petitioner also disclaims liability on the ground of Article 2176 of the Civil Code,contending it has exercised due diligence in the selection and supervision of itsemployees. The Court cannot agree. The record shows it was in fact lax in requiringthem to exercise the necessary vigilance in maintaining the rails in good condition toprevent the derailments that sometimes happened "every hour." Obviously, merelyordering the brakemen and conductors to fill out prescribed forms reporting derailments-which reports have not been acted upon as shown by the hourly derailments is-not thekind of supervision envisioned by the Civil Code.

We also do not see how the decedent can be held guilty of contributory negligence fromthe mere fact that he was not at his assigned station when the train was derailed. Thatmight have been a violation of company rules but could not have directly contributed tohis injury, as the petitioner suggests. It is pure speculation to suppose that he would nothave been injured if he had stayed in the front car rather than at the back and that he

had been killed because he chose to ride in the caboose.

Contributory negligence has been defined as "the act or omission amounting to want ofordinary care on the part of the person injured which, concurring with the defendant'snegligence, is the proximate cause of theinjury." 5It has been held that "to hold a person as having contributed to his injuries, itmust be shown that he performed an act that brought about his injuries in disregard ofwarnings or signs of an impending danger to health and body." 6There is no showingthat the caboose where Famoso was riding was a dangerous place and that herecklessly dared to stay there despite warnings or signs of impending danger.

The last point raised by the petitioner is easily resolved. Citing the case of Floresca v.Philex Mining Corporation, 7it argues that the respondent court erred in disauthorizingthe deduction from the total damages awarded the private respondent of the amount ofP41,367.60, representing the pension to be received by the private respondent from theSocial Security System for a period of five years. The argument is that such deductionwas quite proper because of Art. 173 of the Labor Code, as amended. This articleprovides that any amount received by the heirs of a deceased employee from theEmployees Compensation Commission, whose funds are administered by the SSS,shall be exclusive of all other amounts that may otherwise be claimed under the CivilCode and other pertinent laws.

The amount to be paid by the SSS represents the usual pension received by the heirsof a deceased employee who was a member of the SSS at the time of his death andhad regularly contributed his premiums as required by the System. The pension is thebenefit derivable from such contributions. It does not represent the death benefitspayable under the Workmen's Compensation Act to an employee who dies as a resultof a work-connected injury. Indeed, the certification from the SSS 8submitted by thepetitioner is simply to the effect that:


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TO WHOM IT MAY CONCERN:

This is to certify that Mrs. Herminia Vda. de Famoso is a recipient of a monthly pensionfrom the Social Security System arising from the death of her late husband, JulioFamoso, an SSS member with SSS No. 07-018173-1.

This certification is issued to Ma-ao Sugar Central for whatever legal purpose it mayserve best.

Issued this 8th day of April 1983 in Bacolod City, Philippines.

GODOFREDOS. SISON

RegionalManager

By: (SGD.)COSME Q.

BERMEO, JR.

Chief, BenefitsBranch

It does not indicate that the pension is to be taken from the funds of the ECC. Thecertification would have said so if the pension represented the death benefits accruingto the heirs under the Workmen's Compensation Act.

This conclusion is supported by the express provision of Art. 173 as amended, whichcategorically states that:

Art. 173. Exclusiveness of liability. Unless otherwise provided, the liability of the StateInsurance Fund under this Title shall be exclusive and in place of all other liabilities of theemployer to the employee, his dependents or anyone otherwise entitled to receivedamages on behalf of the employee or his dependents. The payment of compensationunder this Title shall not bar the recovery of benefits as provided forin Section 699 of theRevised Administrative Code, Republic Act Numbered Eleven hundred sixty-one, asamended,Commonwealth Act Numbered One hundred eighty-six, as amended, RepublicAct Numbered Six hundred ten, as amended, Republic Act Numbered Forty-eighthundred sixty-four, as amended and other laws whose benefits are administered by theSystem or by other agencies of the government. (Emphasis supplied).

Rep. Act No. 1161, as amended, is the Social Security Law.

As observed by Justice J.B.L. Reyes in the case of Valencia v. Manila Yacht Club, 9which is still controlling:

. . . By their nature and purpose, the sickness or disability benefits to which a member ofthe System may be entitled under the Social Security law (Rep. Act No. 1161, asamended by Rep. Acts Nos. 1792 and 2658) are not the same as the compensation thatmay be claimed against the employer under the Workmen's Compensation Act or the


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Civil Code, so that payment to the member employee of social security benefits would notwipe out or extinguish the employer's liability for the injury or illness contracted by hisemployee in the course of or during the employment. It must be realized that, under theWorkmen's Compensation Act (or the Civil Code, in a proper case), the employer isrequired to compensate the employee for the sickness or injury arising in the course ofthe employment because the industry is supposed to be responsible therefore; whereas,under the Social Security Act, payment is being made because the hazard specificallycovered by the membership, and for which the employee had put up his own money, hadtaken place. As this Court had said:

. . . To deny payment of social security benefits because the death orinjury or confinement is compensable under the Workmen'sCompensation Act would be to deprive the employees members of theSystem of the statutory benefits bought and paid for by them, since theycontributed their money to the general common fund out of whichbenefits are paid. In other words, the benefits provided for in theWorkmen's Compensation Act accrues to the employees concerned dueto the hazards involved in their employment and is made a burden on theemployment itself However, social security benefits are paid to theSystem's members, by reason of their membership therein for which theycontribute their money to a general common fund . . . .

It may be added that whereas social security benefits are intended toprovide insurance or protection against the hazards or risks for whichthey are established, e.g., disability, sickness, old age or death,irrespective of whether they arose from or in the course of theemployment or not, the compensation receivable under the Workmen'sCompensation law is in the nature of indemnity for the injury or damagesuffered by the employee or his dependents on account of theemployment. (Rural Transit Employees Asso. vs. Bachrach Trans. Co.,21 SCRA 1263 [19671])

And according to Justice Jesus G. Barrera in Benguet Consolidated, Inc. v. SocialSecurity System:" 10

The philosophy underlying the Workmen's Compensation Act is to make the payment ofthe benefits provided for therein as a responsibility of the industry, on the ground that it isindustry which should bear the resulting death or injury to employees engaged in the saidindustry. On the other hand, social security sickness benefits are not paid as a burden onthe industry, but are paid to the members of the System as a matter of right, wheneverthe hazards provided for in the law occurs. To deny payment of social security benefitsbecause the death or injury or confinement is compensable under the Workmen'sCompensation Act would be to deprive the employees-members of the System of thestatutory benefits bought and paid for by them, since they contribute their money to thegeneral common fund out of which benefits are paid. In other words, the benefits

provided for in the Workmen's Compensation Act accrues to the employees concerned,due to the hazards involved in their employment and is made a burden on theemployment itself However, social security benefits are paid to the System's members,by reason of their membership therein for which they contributed their money to a generalcommon fund.

Famoso's widow and nine minor children have since his death sought to recover the justrecompense they need for their support. Instead of lending a sympathetic hand, thepetitioner has sought to frustrate their efforts and has even come to this Court to seek


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our assistance in defeating their claim. That relief-and we are happy to say this must bewithheld.

WHEREFORE, the appealed decision is AFFIRMED in toto. The petition is DENIED,with costs against the petitioner.

SO ORDERED.

G.R. No. L-52732 August 29, 1988

F.F. CRUZ and CO., INC., petitioner,vs.THE COURT OF APPEALS, GREGORIO MABLE as substituted by his wife LUZALMONTE MABLE and children DOMING, LEONIDAS, LIGAYA, ELENA,GREGORIO, JR., SALOME, ANTONIO, and BERNARDO all surnamed MABLE,respondents.

Luis S. Topacio for petitioner.

Mauricio M. Monta for respondents.

CORTES, J.:

This petition to review the decision of the Court of Appeals puts in issue the applicationof the common law doctrine of res ipsa loquitur.

The essential facts of the case are not disputed.

The furniture manufacturing shop of petitioner in Caloocan City was situated adjacent tothe residence of private respondents. Sometime in August 1971, private respondentGregorio Mable first approached Eric Cruz, petitioner's plant manager, to request that afirewall be constructed between the shop and private respondents' residence. Therequest was repeated several times but they fell on deaf ears. In the early morning ofSeptember 6, 1974, fire broke out in petitioner's shop. Petitioner's employees, who sleptin the shop premises, tried to put out the fire, but their efforts proved futile. The firespread to private respondents' house. Both the shop and the house were razed to the

ground. The cause of the conflagration was never discovered. The National Bureau ofInvestigation found specimens from the burned structures negative for the presence ofinflammable substances.

Subsequently, private respondents collected P35,000.00 on the insurance on theirhouse and the contents thereof.


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On January 23, 1975, private respondents filed an action for damages againstpetitioner, praying for a judgment in their favor awarding P150,000.00 as actualdamages, P50,000.00 as moral damages, P25,000.00 as exemplary damages,P20,000.00 as attorney's fees and costs. The Court of First Instance held for privaterespondents:

WHEREFORE, the Court hereby renders judgment, in favor of plaintiffs, and against thedefendant:

1. Ordering the defendant to pay to the plaintiffs the amount of P80,000.00 for damagessuffered by said plaintiffs for the loss of their house, with interest of 6% from the date ofthe filing of the Complaint on January 23, 1975, until fully paid;

2. Ordering the defendant to pay to the plaintiffs the sum of P50,000.00 for the loss ofplaintiffs' furnitures, religious images, silverwares, chinawares, jewelries, books, kitchenutensils, clothing and other valuables, with interest of 6% from date of the filing of theComplaint on January 23, 1975, until fully paid;

3. Ordering the defendant to pay to the plaintiffs the sum of P5,000.00 as moraldamages, P2,000.00 as exemplary damages, and P5,000.00 as and by way of attorney'sfees;

4. With costs against the defendant;

5. Counterclaim is ordered dismissed, for lack of merit. [CA Decision, pp. 1-2; Rollo, pp.29-30.]

On appeal, the Court of Appeals, in a decision promulgated on November 19, 1979,affirmed the decision of the trial court but reduced the award of damages:

WHEREFORE, the decision declaring the defendants liable is affirmed. The damages tobe awarded to plaintiff should be reduced to P70,000.00 for the house and P50,000.00for the furniture and other fixtures with legal interest from the date of the filing of thecomplaint until full payment thereof. [CA Decision, p. 7; Rollo, p. 35.]

A motion for reconsideration was filed on December 3, 1979 but was denied in aresolution dated February 18, 1980. Hence, petitioner filed the instant petition for reviewon February 22, 1980. After the comment and reply were filed, the Court resolved todeny the petition for lack of merit on June 11, 1980.

However, petitioner filed a motion for reconsideration, which was granted, and thepetition was given due course on September 12, 1980. After the parties filed theirmemoranda, the case was submitted for decision on January 21, 1981.

Petitioner contends that the Court of Appeals erred:

1. In not deducting the sum of P35,000.00, which private respondents recovered on theinsurance on their house, from the award of damages.


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2. In awarding excessive and/or unproved damages.

3. In applying the doctrine of res ipsa loquiturto the facts of the instant case.

The pivotal issue in this case is the applicability of the common law doctrine of res ipsa

loquitur,the issue of damages being merely consequential. In view thereof, the errorsassigned by petitioner shall be discussed in the reverse order.

1. The doctrine of res ipsa loquitur, whose application to the instant case petitionerobjects to, may be stated as follows:

Where the thing which caused the injury complained of is shown to be under themanagement of the defendant or his servants and the accident is such as in the ordinarycourse of things does not happen if those who have its management or control useproper care, it affords reasonable evidence, in the absence of explanation by thedefendant, that the accident arose from want of care. [Africa v. Caltex (Phil.), Inc., G.R.No. L-12986, March 31, 1966, 16 SCRA 448.]

Thus, inAfrica, supra, where fire broke out in a Caltex service station while gasolinefrom a tank truck was being unloaded into an underground storage tank through a hoseand the fire spread to and burned neighboring houses, this Court, applying the doctrineof res ipsa loquitur, adjudged Caltex liable for the loss.

The facts of the case likewise call for the application of the doctrine, considering that inthe normal course of operations of a furniture manufacturing shop, combustible materialsuch as wood chips, sawdust, paint, varnish and fuel and lubricants for machinery maybe found thereon.

It must also be noted that negligence or want of care on the part of petitioner or itsemployees was not merely presumed. The Court of Appeals found that petitioner failedto construct a firewall between its shop and the residence of private respondents asrequired by a city ordinance; that the fire could have been caused by a heated motor ora lit cigarette; that gasoline and alcohol were used and stored in the shop; and thatworkers sometimes smoked inside the shop [CA Decision, p. 5; Rollo, p. 33.]

Even without applying the doctrine of res ipsa loquitur, petitioner's failure to construct afirewall in accordance with city ordinances would suffice to support a finding ofnegligence.

Even then the fire possibly would not have spread to the neighboring houses were it notfor another negligent omission on the part of defendants, namely, their failure to provide aconcrete wall high enough to prevent the flames from leaping over it. As it was theconcrete wall was only 2-1/2 meters high, and beyond that height it consisted merely ofgalvanized iron sheets, which would predictably crumble and melt when subjected tointense heat. Defendant's negligence, therefore, was not only with respect to the cause ofthe fire but also with respect to the spread thereof to the neighboring houses. [Africa v.Caltex (Phil.), Inc., supra; Emphasis supplied.]


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In the instant case, with more reason should petitioner be found guilty of negligencesince it had failed to construct a firewall between its property and private respondents'residence which sufficiently complies with the pertinent city ordinances. The failure tocomply with an ordinance providing for safety regulations had been ruled by the Courtas an act of negligence [Teague v. Fernandez, G.R. No. L-29745, June 4, 1973, 51

SCRA 181.]

The Court of Appeals, therefore, had more than adequate basis to find petitioner liablefor the loss sustained by private respondents.

2. Since the amount of the loss sustained by private respondents constitutes a finding offact, such finding by the Court of Appeals should not be disturbed by this Court [M.D.Transit & Taxi Co., Inc. v. Court of Appeals, G.R. No. L-23882, February 17, 1968, 22SCRA 559], more so when there is no showing of arbitrariness.

In the instant case, both the CFI and the Court of Appeals were in agreement as to the

value of private respondents' furniture and fixtures and personal effects lost in the fire(i.e. P50,000.00). With regard to the house, the Court of Appeals reduced the award toP70,000.00 from P80,000.00. Such cannot be categorized as arbitrary considering thatthe evidence shows that the house was built in 1951 for P40,000.00 and, according toprivate respondents, its reconstruction would cost P246,000.00. Considering theappreciation in value of real estate and the diminution of the real value of the peso, thevaluation of the house at P70,000.00 at the time it was razed cannot be said to beexcessive.

3. While this Court finds that petitioner is liable for damages to private respondents asfound by the Court of Appeals, the fact that private respondents have been indemnified

by their insurer in the amount of P35,000.00 for the damage caused to their house andits contents has not escaped the attention of the Court. Hence, the Court holds that inaccordance with Article 2207 of the Civil Code the amount of P35,000.00 should bededucted from the amount awarded as damages. Said article provides:

Art. 2207. If the plaintiffs property has been insured, and he has received indemnity fromthe insurance company for the injury or loss arising out of the wrong or breach of contractcomplained of, the insurance company is subrogated to the rights of the insured againstthe wrongdoer or the person who violated the contract. If the amount paid by theinsurance company does not fully cover the injury or loss, the aggrieved party shall beentitled to recover the deficiency from the person causing the loss or injury. (Emphasissupplied.]

The law is clear and needs no interpretation. Having been indemnified by their insurer,private respondents are only entitled to recover the deficiency from petitioner.

On the other hand, the insurer, if it is so minded, may seek reimbursement of theamount it indemnified private respondents from petitioner. This is the essence of its rightto be subrogated to the rights of the insured, as expressly provided in Article 2207.Upon payment of the loss incurred by the insured, the insurer is entitled to besubrogatedpro tantoto any right of action which the insured may have against the third


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person whose negligence or wrongful act caused the loss [Fireman's Fund InsuranceCo. v. Jamila & Co., Inc., G.R. No. L-27427, April 7, 1976, 70 SCRA 323.]

Under Article 2207, the real party in interest with regard to the indemnity received by theinsured is the insurer [Phil. Air Lines, Inc. v. Heald Lumber Co., 101 Phil. 1031, (1957).]

Whether or not the insurer should exercise the rights of the insured to which it had beensubrogated lies solely within the former's sound discretion. Since the insurer is not aparty to the case, its identity is not of record and no claim is made on its behalf, theprivate respondent's insurer has to claim his right to reimbursement of the P35,000.00paid to the insured.

WHEREFORE, in view of the foregoing, the decision of the Court of Appeals is herebyAFFIRMED with the following modifications as to the damages awarded for the loss ofprivate respondents' house, considering their receipt of P35,000.00 from their insurer:(1) the damages awarded for the loss of the house is reduced to P35,000.00; and (2)the right of the insurer to subrogation and thus seek reimbursement from petitioner for

the P35,000.00 it had paid private respondents is recognized.

SO ORDERED.

G.R. No. L-10181 March 2, 1915

THE UNITED STATES,plaintiff-appellee,vs.MARIANO CRAME,defendant-appellant.

Alfredo Chicote for appellant.

Office of the Solicitor-General for appellee.

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of Manila convicting theaccused of the crime of serious physical injuries through reckless negligence.

The information under which he was tried and convicted is as follows:

That on or about the 10th day of February, 1914, in the city of Manila, Philippine Islands,the said Mariano Crame, being then and there the chauffeur of a motor vehicle, did then

and there unlawfully, with reckless imprudence and in violation of the regulations,conduct and drive the said motor vehicle along Calle Herran in said city without usingreasonable care and diligence to prevent injury to persons and property and withoutpaying any attention to the pedestrians occupying and crossing said street, thus collidingwith, running over, and by his neglect and imprudence in the management and lack ofcontrol thereof, causing the said automobile guided and conducted by the said accused asaforesaid, to knock down, drag, and run over the body of one George B. Coombs, aprivate in the United States Army, who was then and there occupying and crossing the


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said Calle Herran, thereby causing injuries, wounds, and bruises upon the person of thesaid George B. Coombs, which said injuries, wounds, and bruises have deranged themental faculties of the said George B. Coombs and have incapacitated him, the saidGeorge B. Coombs, from further performance of his duties as a soldier of the said UnitedStates Army.

It appears from the evidence that on the night of the 10th of February, 1914, between 11 and 12o'clock, the accused, Mariano Crame, a duly-licensed chauffeur, was driving an automobile, inwhich, at the time, were Thomas M. Bill, a sailor belonging to the United States Navy, andIndalecio Rabonsa, an apprentice to the accused who, at the time of the accident, was sitting athis side on the front seat. The automobile was passing from Santa Ana to Manila and, at the timeof the accident, was going in a northwesterly direction. At the same time there were twoautomobile on the way from Manila to Santa Ana, one belonging to Mr. Stuart, driven byhimself, and the other a machine without passengers driven by a chauffeur by the name ofMiranda. The automobile driven by Stuart was a modern Cadillac with high-powered electriclights. The accused states that this fact added to the other fact that he was near the Damas Bridge

at the time, induced him to reduce the speed of the automobile at that point so that he was, at thetime of the accident, going only about 10 miles an hour. He asserts that he suddenly saw the formof a man in front of his automobile and that, on seeing him, he altered the course of the machineas much as possible in order to avoid a collision; but that he was unable to do so, the right side ofthe machine hitting the man and knocking him to the ground. He asserted that at the time itstruck the man, the machine was almost at a standstill, it coming to a complete stop within about6 feet of where the injured man lay.

Crame, Rabonsa, and Bill placed the injuries man in the automobile and carried him to thehospital. Afterwards they went to the police station at Paco and gave an account of the accident.Immediately thereafter Crame also went to the office of the superintendent of automobiles of theBureau of Public Works and reported the accident.

Relative to the injuries resulting to Coombs from the accident, it appears that he received a heavyblow in the lower part of the back of the head which caused ecchymosis and coagulation ofblood. As a result of the blow he was rendered unconscious and has since remained in state ofgreat mental debility, with severe pains in the head, almost complete loss of memory, beingunable to remember anything that occurred during the accident and, it times forgetting the namesand countenances of his most continual attendance. He is described by the physician whoexamined and treated him as an incurable and hopeless imbecile.

The learned trial court convicted the accused of the crime of producing serious physical injuriesby imprudencia temeraria, setting forth as the grounds of the conviction the following reasons:

First, in that [before the occurrence] the accused, having seen the coldier Coombscrossing the street at a certain distance in front of the automobile, did not reduce thespeed of the automobile sufficiently, nor attempt to stop the machinery entirely, if thatwas necessary, to avoid an accident. Second, in that it does not appear that the accusedsounded his horn or whistle or used his voice to call the attention of the person who wascrossing the street or notify him that he should stop and avoid being struck by the


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automobile. Third and last, in that the accused was driving in the center, or little to theright of the center of the street instead of on the left side thereof:

Discussing these point the court said:

With reference to the first ground of negligence, the accused alleges that he was unable tostop his machine suddenly; but to this it may be answered that if he had begun to stop themachine the first moment that he saw the soldier the accident would undoubtedly havebeen avoided. . . . What the court desires to say is that with a speed of only 12 to 20 milean hour, if the accused had begun to reduce speed in time, there is no doubt whatever thatthe accident would have been avoided and he would have been able easily to stop hismachine in time.

Relative to the second ground of negligence, or the failure, in order to prevent the injury,to sound the horn and arrest the attention of the soldier who was crossing the street, thereis nowhere in the case any proof or even an allegation in front of the accused. He testified

as a witness in his own behalf, but he never mentioned having sounded the horn, nor didhe give any reason why he did not do so.

In regard to the third ground of negligence, the accused and his witnesses sought toestablish the fact that, at the place where the accident occurred, the automobile could notpass along the left side of the street because the street-car rails are upon that side, and ifhe had attempted to pass upon the left side of the rails the automobile would have beenthrown into the ditch, as the street upon that side of the street-car tracks is very unevenand as a result the chauffeur and his passenger would have been exposed to a greaterdanger than the one that they tried to avoid. The court nevertheless, is of the opinion thatthis claim is not sustainable in view of the fact that, at the place where the accident

occurred, as has already been said, there are two street-car tracks. One of those track, it istrue, is very close to the extreme left side of the street, but the other is located about thecenter of the street. The accused should not have been required to drive his automobileupon the left said of the farther track; but it is evident that he could have passed betweenthis track and the track in the center of the street. If the accident had occurred under suchcircumstances the court would have said that it was an unavoidable accident. But as thecollision occurred outside of the tack in the center of the street and on the right hand sideof the street, the court believes that the accused is the cause of said accident.

The court, in company with the prosecuting attorney, the attorney of the accused andMariano Crame himself, examined the place where the accident occurred and, from acareful examination of the place, compared with the testimony of the seaman Bill and thewitness Stuart, the Court is convinced that the place where the soldier was hit is not theplace indicated by the accusedthat is, between the Damas Bridge and the McKinleyJunction, just opposite a wooden post, but at the place marked in the plan Exhibit A bythe witness Stuart.

We are satisfied from an examination of the record that the conclusions of the trial court aremore than sustained. The accused did not see the soldier whom he ran down until it was too late,


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although the street at that point was brilliantly lighted; he did not sound his horn or give notice ofhis approach in any other manner; he did not apply the brake or make any effort whatever tostop; he was traveling on the wrong side of the street at the time of the collision.

In defense of the accused counsel says:

At what distance did the accused see the soldier? From the testimony of the accused andthe witness Rabonsa, which is all the proof there is in the record in this respect, it isinferred that neither the chauffeur nor his companion saw the soldier at a sufficientdistance to permit them to lose time in useless or at least doubtful maneuvers; Rabonsasays that he saw the soldier first at the very moment of the accident; Stuart saw him onlyas he was falling to the ground; and the accused says that the soldier appeared suddenlyin front of the machine and that he, accused, in the face of imminent danger of a collisioncharged the direction of the automobile in order not to have the center of the machinestrike the soldier, but that he was unable to avoid hitting him with the rear part of themachine, thereby party turning him and making him fall to the ground; that thereupon the

accused, in order to prevent the rear wheel from striking the soldier, again changed thedirection of the machine, thereby avoiding by these two maneuvers the passage of themachine over the body of the soldier.

This argument is, in our judgment, not a strong one. The fact that the accused did not see thesoldier until the machine was very close to him is strong evidence of inattention to duty. Thestreet at the place where the accident occurred is wide and unobstructed. There is no building oneither side of the street. There is no place from which a person desiring to cross the street candart out so suddenly and unexpectedly as to give a chauffeur no opportunity to protect him. Thestreet at the point where the accident occurred was well lighted by electric light placed on bothsides of the street. Besides, it is in close proximity to McKinley Junction and there are a number

of electric lights in and about the waiting station located at that point. Under such circumstancethere is no reason why the accused did not see that soldier long before he had reached theposition in the street where he was struck down. It is claimed by the accused himself that thesoldier was near the center of the street when the collision occurred. In that event he must havewalked in plain sight of the oncoming machine for many feet before he arrived at the placewhere he was struck. He could not have risen out of the ground nor could he have dartedsuddenly into the street from a side street or door. He was walking in an open, level, andthoroughly lighted street for many feet before he was hit by the automobile; and the fact that theaccused, under such circumstances, did not see him is strong evidence that he was negligent.

The accused intimates in his testimony that a carromata was approaching him just before theaccident occurred and that it obscured his vision to such an extent that he did not see that soldieruntil the very moment of meeting the carromata. This story is not corroborated by any otherwitness in the case. No one else speaks of the presence there of a carromata and no one offersthis as a person why the soldier was not seen in time to avoid the accident. Moreover, if thesoldier were crossing the street the carromata would have obscured him for a moment only andthere would have been abundant time to observe him before he reached the carromata and afterhe had passed it. Besides, it is the duty of automobile drivers in meeting a moving vehicle on thepublic streets and highways to use due care and diligence to see to it that person who may be


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crossing behind the moving vehicle are not run down by their automobiles. There is nothing inthis story of the accused which, if true, relieves from the charge of negligence under the otherfacts and circumstances disclosed by the evidence. It is to be noted, also that counsel for theaccused lays no stress on this portion of his story and does not make it the basis of an argumentin his behalf.

As we have said, the testimony and the exhibit show that the accident occurred at or near theMcKinley Junction, where there is a waiting station, a kiosko, and a hydrant, where manypersons habitually wait to transfer and where, as a matter of fact, even up to midnight, manypersons stroll about waiting for cars. The defendant was aware of these facts. Moreover, hetestified himself that the street at that place was not level, that the rails of the street-car trackmade it difficult for automobiles to cross or pass over them and that keeping to the extreme left-hand side of the street would endanger the safety of the automobile and the passengers. All ofthese are facts which require care and diligence on the part of an automobile driver; and such aplace should be approached guardedly, with the machine under control and with ability to stopwith reasonable quickness.

It appears clearly established by the evidence that the accused was driving on the right-hand sideof the street when the accident happened. According to the law of the road and the custom of thecountry he should have been on the left-hand side of the street. According to the evidence therewas abundant room for him to drive upon what may properly be called the left-hand side of thestreet and still be free from danger or risk. Instead of that he chose to take what appears from theevidence to have been almost the extreme right-hand side of the street. Thomas M. Bill, who wasa passenger in the automobile which ran down the soldier, testified that the automobile at thetime of the accident was traveling on the right-hand side of the street. A. R. Stuart, who wasdriving an automobile approaching the place of the accident from the opposite direction, testifiedthat the victim was struck at the point marked "A" on the plan introduced in evidence and thatthe automobile was located at the point marked "B", a point indisputably on the right-hand sideof the street; that the automobile, when it stopped after the collision, was not standing parallelwith the street but at an angle with the center line of the streets, having turned toward the left-hand side of the street after it had continued upon what was to him the left-hand side of thestreet, he would have run over the body of the soldier. The testimony showing that the accusedwas driving on the right-hand side of the street is corroborated by the fact that the witnessRabonsa, who testified on the trial that the accused was driving on the left-hand side of the street,first declared, in his statement to the prosecuting attorney, that, at the time of the accident, theautomobile was being driven on the right-hand side of the street.

While it is true that the law does not draw an inference of negligence from the mere showing thatthere was a collision between a man and an automobile on a public street but that negligencemust be proved, nevertheless, we believe it to be the rule that testimony that plaintiff, whiledriving on the right-hand side of a wide road, was overtaken by an automobile which struck thehind wheel of his wagon, establishes a case of negligence. (Salminen vs. Ross, 185 Fed., 997.)And a bicyclist has the burden of disproving his negligence when he rides up behind another whois walking where he has a right to walk and, without giving any warning strikes him with hisvehicle. (Myers vs. hinds, 110 Mich ., 300.) And we have held in the case of Cahpman vs.Underwood (27 Phil., Rep., 374), that where, in the an action to recover damages for having been


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run down by defendant's automobile, it appeared that the automobile, at the time the injury wasproduced, was being driven on the wrong side of the street, the burden of proof was on defendantto establish that the accident occurred through other causes than his negligence.

There is no evidence in the case which shows negligence on the part of the injured soldier. The

mere fact that he was run down by an automobile does not signify that he was negligent. At thetime he was struck he was, speaking from the direction in which the accused was driving theautomobile at the time, on the right-hand side of the street where he had a right to be and wherethe law fully protested him from vehicles traveling in the direction in which tested him fromvehicles traveling in the direction in which the accused was driving at the time of the injury. Therule which requires travelers to look out for trains at railroad crossings by stopping, looking andlistening before they pass over the tracks does not fix the measure of care which a pedestrianattempting to cross a street must use in looking out for automobiles. Negligence and contributorynegligence are matters to be proved, and the burden is on the one alleging injury from negligenceto establish it and upon the other alleging immunity because of contributory negligence toestablish it, unless soldier cannot be held to have been negligent except upon evidence

establishing that fact. The beggar on his crutches has the same right to the use of the streets ofthe city as has the man in his automobile. Each is bound to the exercise of ordinary care for hisown safety and the prevention of injury to others, in the use thereof. (Millsaps vs. Brogdon, 32L.R.A. (N.S.), 1177.) This is especially true when we take into consideration the assertion of theaccused that, by reason of the position of the street-car tracks, he was unable to take the left-handside of the street, which is the side which the law requires him to take, but that it was necessaryfor him to pass in the middle of the street or a little to the right of the middle in other to make asafe passage for the automobile and its passengers. We have held in the case of Chapman vs.Underwood (27 Phil., Rep., 374), a case in which the defendant's chauffeur was driving on thewrong side of the street at the time accident, which was the basis of the action, occurred, that'defendant's driver was guilty of negligence in running upon and over the plaintiff. He waspassing an oncoming car upon the wrong side. The plaintiff, in coming out to board the car, wasnot obliged, for his own protection, to observe whether a car was coming upon him from his lefthand. He had only to guard against those coming from the right. he knew that, according to thelaw of the road, no automobile or other vehicle coming from his left hand should pass upon hisside of the car. He needed only to watch for cars coming from his right, as they were the onlyones under the law permitted to pass upon that side of the street car."

We regard it as clear from the record that the accused was driving much faster than he claims hewas or else he was negligent in not watching the street for foot passengers, or in the handing ofhid automobile. It is a matter of common knowledge that an automobile being driven at 10 milesan hour can be stopped if, necessity requires it, within 10 or 15 feet at the most. That rate ofspeed is extremely low for an automobile and , with such a sped, it can be stopped almostinstantly. If, therefore, the accused was going at the rate of 10 miles an hour only and saw thesoldiers 20 feet ahead of him, he could, without difficulty, have stopped the automobile andavoided the accident. As a necessary consequence, the accused was either driving at a rate ofspeed much higher than that stated or else he was negligent in not stopping his car. Furthermore,if he did not see that soldier until too late to stop, the burden is on him to show why he did not.There is something wrong when a chauffeur runs over a man who is in plain view of theautomobile for a long distance before the point of the accident is reached. No negligence on the


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part of the injured person has shown. Whichever way the case is looked at, whether from theviewpoint of the failure to see the soldier in time to avoid the accident or failure to stop or givewarning by horn or whistle, it is clear that the learned trial court was right when it held that theaccused was guilty of negligence.

There is no competent evidence to show that the soldier was drunk at the time of the accident;but, even if he was drunk, it is of little consequence in the decision of this case, it not havingbeen shown that such drunkenness contributed to the accident. Whatever his condition he couldeasily have been seen by the automobile driver if he had been vigilant, as he should have been, inpassing over the streets of a city and especially in passing a place where many used by people onfoot. It is not shown that the soldier's drunkenness, if he was in that state, any degree contributedto the accident or that the accident would have been avoided if he had been sober. We have heldin the case of Wright vs. Manila Electric Railroad and Light Co. (28 Phil., Rep., 122):

Mere intoxication is not negligence, nor does the mere fact of intoxication establish awant of ordinary care. It is but a circumstance to be considered with the other evidence

tending to prove negligence. It is the general rule that it is immaterial whether a man isdrunk or if no want of ordinary care or prudence can be imputed to him, and no greaterdegree of care is required to be exercised by an intoxicated man for his own protectionthan by a sober one. If one's conduct is characterized by a proper degree of care andprudence, it is immaterial whether he is drunk or sober. (Ward vs. Chicago etc. Ry. Co.,85 Wios., 601; Houston and T.C. Ry. Ry. Co. vs. Reason, 61 Tex., 613; Alger vs. Lowell,3 Allen, 402; Central R. and Bkg. Co. vs. Phinazee, 93 Ga., 488; Maguire vs. MiddlesexR. Co., 115 Mass., 239; Meyer vs. Pacific R.R. Co., 40 Mo., 151; Chicago and N.W. Ry.Co. vs. Drake, 33 III. App., 114.)

The judgment appealed from is affirmed, with costs against the appellant. So ordered.

G.R. No. L-12986 March 31, 1966

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OFDOMINGA 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, whichaffirmed that of the Court of First Instance of Manila dismissing petitioners' second amendedcomplaint against respondents.


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The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that inthe afternoon of March 18, 1948 a fire broke out at the Caltex service station at the corner ofAntipolo street and Rizal Avenue, Manila. It started while gasoline was being hosed from a tanktruck into the underground storage, right at the opening of the receiving tank where the nozzle ofthe 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, suedrespondents 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 thatrespondents had exercised due care in the premises and with respect to the supervision of theiremployees.

The first question before Us refers to the admissibility of certain reports on the fire prepared bythe 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 LeandroFlores was transferring gasoline from a tank truck, plate No. T-5292 into theunderground tank of the Caltex Gasoline Station located at the corner of RizalAvenue and Antipolo Street, this City, an unknown Filipino lighted a cigaretteand threw the burning match stick near the main valve of the said undergroundtank. Due to the gasoline fumes, fire suddenly blazed. Quick action of LeandroFlores in pulling off the gasoline hose connecting the truck with the underground

tank prevented a terrific explosion. However, the flames scattered due to the hosefrom which the gasoline was spouting. It burned the truck and the followingaccessorias and residences.

2. The Fire Department report:

In connection with their allegation that the premises was (sic) subleased for theinstallation of a coca-cola and cigarette stand, the complainants furnished this Office acopy of a photograph taken during the fire and which is submitted herewith. it appears inthis picture that there are in the premises a coca-cola cooler and a rack which accordingto information gathered in the neighborhood contained cigarettes and matches, installedbetween the gasoline pumps and the underground tanks.

The report of Captain Tinio reproduced information given by a certain Benito Morales regardingthe history of the gasoline station and what the chief of the fire department had told him on thesame subject.

The foregoing reports were ruled out as "double hearsay" by the Court of Appeals andhence inadmissible.This ruling is now assigned as error. It is contended: first, that said reports


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were admitted by the trial court without objection on the part of respondents; secondly, that withrespect to the police report (Exhibit V-Africa) which appears signed by a Detective Zapantaallegedly "for Salvador Capacillo," the latter was presented as witness but respondents waivedtheir right to cross-examine him although they had the opportunity to do so; and thirdly, that inany 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 objectedto 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 thedisputed ones, carried no such explanation.

On the second point, although Detective Capacillo did take the witness stand, he was notexamined 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 ofthe fire and, if possible, gather witnesses as to the occurrence, and that he brought the report withhim. There was nothing, therefore, on which he need be cross-examined; and the contents of thereport, as to which he did not testify, did not thereby become competent evidence. And even if hehad testified, his testimony would still have been objectionable as far as information gathered byhim 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, areprima facieevidence 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 onthe Rules of Court, Vol. 3 [1957] p. 398).

Of the three requisites just stated, only the last need be considered here. Obviously the materialfacts 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 suchfacts, however, acquired by them through official information? As to some facts the sourcesthereof are not even identified. Others are attributed to Leopoldo Medina, referred to as anemployee at the gas station were the fire occurred; to Leandro Flores, driver of the tank truckfrom which gasoline was being transferred at the time to the underground tank of the station; and


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to respondent Mateo Boquiren, who could not, according to Exhibit V-Africa, give any reason asto the origin of the fire. To qualify their statements as "official information" acquired by theofficers 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 thereinwere not acquired by the reporting officers through official information, not having been givenby 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, thedoctrine of res ipsa loqui tur 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 instantcase on the grounds that "as to (its) applicability ... in the Philippines, there seems to he nothingdefinite," and that while the rules do not prohibit its adoption in appropriate cases, "in the case atbar, 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 ofEspiri tu vs. Phi li ppine 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. Reyesnow 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 wereloading 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, installedand 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 hewas about to board the truck. As a result, plaintiff received the full shock of 4,400 voltscarried by the wire and was knocked unconscious to the ground. The electric chargecoursed through his body and caused extensive and serious multiple burns from skull tolegs, leaving the bone exposed in some parts and causing intense pain and wounds thatwere not completely healed when the case was tried on June 18, 1947, over one year afterthe mishap.

The defendant therein disclaimed liability on the ground that the plaintiff had failed to show anyspecific act of negligence, but the appellate court overruled the defense under the doctrine of resipsa loquitur. The court said:

The first point is directed against the sufficiency of plaintiff's evidence to place appellanton its defense. While it is the rule, as contended by the appellant, that in case of

noncontractual negligence, or culpa aquili ana, 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


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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 speaksfor itself), and is peculiarly applicable to the case at bar, where it is unquestioned that theplaintiff had every right to be on the highway, and the electric wire was under the solecontrol of defendant company. In the ordinary course of events, electric wires do not partsuddenly in fair weather and injure people, unless they are subjected to unusual strain andstress or there are defects in their installation, maintenance and supervision; just asbarrels do not ordinarily roll out of the warehouse windows to injure passersby, unlesssome one was negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, theleading case that established that rule). Consequently, in the absence of contributorynegligence (which is admittedly not present), the fact that the wire snapped suffices toraise a reasonable presumption of negligence in its installation, care and maintenance.

Thereafter, as observed by Chief Baron Pollock, "if there are any facts inconsistent withnegligence, 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 onthe Supreme Court, but we do not consider this a reason for not applying the particular doctrineof res ipsa loquiturin 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 casestrikingly 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 1934was leased to the Shell Petroleum Corporation for a gasoline filling station. On October8, 1934, during the term of the lease, while gasoline was being transferred from the tankwagon, also operated by the Shell Petroleum Corporation, to the underground tank of thestation, a fire started with resulting damages to the building owned by Jones. Allegingthat the damages to his building amounted to $516.95, Jones sued the Shell PetroleumCorporation for the recovery of that amount. The judge of the district court, after hearingthe testimony, concluded that plaintiff was entitled to a recovery and rendered judgmentin his favor for $427.82. The Court of Appeals for the First Circuit reversed thisjudgment, on the ground the testimony failed to show with reasonable certainty anynegligence on the part of the Shell Petroleum Corporation or any of its agents oremployees. Plaintiff applied to this Court for a Writ of Review which was granted, andthe case is now before us for decision.1wph1.t

In resolving the issue of negligence, the Supreme Court of Louisiana held:

Plaintiff's petition contains two distinct charges of negligenceone relating to the causeof the fire and the other relating to the spreading of the gasoline about the filling station.


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Other than an expert to assess the damages caused plaintiff's building by the fire, nowitnesses were placed on the stand by the defendant.

Taking up plaintiff's charge of negligence relating to the cause of the fire, we find itestablished 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 theuncontradicted testimony of plaintiff's witnesses that fire started in the underground tankattached to the filling station while it was being filled from the tank truck and while boththe tank and the truck were in charge of and being operated by the agents or employees ofthe defendant, extended to the hose and tank truck, and was communicated from theburning 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 toexplain the cause of the fire or to show its lack of knowledge of the cause, plaintiff hasevoked the doctrine of res ipsa loquitur. There are many cases in which the doctrine maybe 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 bythe courts of last resort. Some of the cases in this jurisdiction in which the doctrine hasbeen 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, 115La. 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-1Africa) the following appears:

Investigation of the basic complaint disclosed that the Caltex Gasoline Stationcomplained of occupies a lot approximately 10 m x 10 m at the southwest corner of RizalAvenue and Antipolo. The location is within a very busy business district near the ObreroMarket, a railroad crossing and very thickly populated neighborhood where a greatnumber of people mill around t


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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 entireneighborhood to conflagration.

Furthermore, aside from precautions already taken by its operator the concrete wallssouth and west adjoining the neighborhood are only 2-1/2 meters high at most and cannotavoid the flames from leaping over it in case of fire.

Records show that there have been two cases of fire which caused not only materialdamages 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 ormore, adding another risk to the possible outbreak of fire at this already small butcrowded gasoline station.

The foregoing report, having been submitted by a police officer in the performance of his dutieson the basis of his own personal observation of the facts reported, may properly be considered asan exception to the hearsay rule. These facts, descriptive of the location and objectivecircumstances surrounding the operation of the gasoline station in question, strengthen thepresumption of negligence under the doctrine of res ipsa loquitur, since on their face they calledfor more stringent measures of caution than those which would satisfy the standard of duediligence 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 gasolinetank wagon who, alone and without assistance, was transferring the contents thereof into theunderground storage when the fire broke out. He said: "Before loading the underground tankthere were no people, but while the loading was going on, there were people who went to drinkcoca-cola (at the coca-cola stand) which is about a meter from the hole leading to theunderground tank." He added that when the tank was almost filled he went to the tank truck toclose 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 concretewall 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 amendedcomplaint that "the fire was caused through the acts of a stranger who, without authority, or


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permission of answering defendant, passed through the gasoline station and negligently threw alighted match in the premises." No evidence on this point was adduced, but assuming theallegation to be truecertainly any unfavorable inference from the admission may be takenagainst Boquirenit does not extenuate his negligence. A decision of the Supreme Court ofTexas, 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 ofprotection to the public proportionate to and commensurate with a danger involved ... we think itis the generally accepted rule as applied to torts that 'if the effects of the actor's negligent conductactively and continuously operate to bring about harm to another, the fact that the active andsubstantially simultaneous operation of the effects of a third person's innocent, tortious orcriminal act is also a substantial factor in bringing about the harm, does not protect the actorfrom 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'sGas Corporation, 153 S.W. 2nd 442.)

The next issue is whether Caltex should be held liable for the damages caused to appellants. Thisissue depends on whether Boquiren was an independent contractor, as held by the Court ofAppeals, or an agent of Caltex. This question, in the light of the facts not controverted, is one oflaw and hence may be passed upon by this Court. These facts are: (1) Boquiren made anadmission that he was an agent of Caltex; (2) at the time of the fire Caltex owned the gasolinestation and all the equipment therein; (3) Caltex exercised control over Boquiren in themanagement of the state; (4) the delivery truck used in delivering gasoline to the station had thename of CALTEX painted on it; and (5) the license to store gasoline at the station was in thename of Caltex, which paid the license fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5Africa; Exhibit X-6 Africa; Exhibit Y-Africa).

In Boquiren's amended answer to the second amended complaint, he denied that he directed oneof 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. Butthen again, in his motion to dismiss appellants' second amended complaint the ground allegedwas that it stated no cause of action since under the allegations thereof he was merely acting asagent of Caltex, such that he could not have incurred personal liability. A motion to dismiss onthis 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 thatthe 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 theirrelationship 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 itwas 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, butmade effective as of January 1, 1948 so as to cover the date of the fire, namely, March 18, 1948.


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This retroactivity provision is quite significant, and gives rise to the conclusion that it wasdesigned precisely to free Caltex from any responsibility with respect to the fire, as shown by theclause that Caltex "shall not be liable for any injury to person or property while in the propertyherein 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 anindependent contractor. Under that agreement Boquiren would pay Caltex the purely nominalsum of P1.00 for the use of the premises and all the equipment therein. He could sell only CaltexProducts. Maintenance of the station and its equipment was subject to the approval, in otherwords control, of Caltex. Boquiren could not assign or transfer his rights as licensee without theconsent of Caltex. The license agreement was supposed to be from January 1, 1948 to December31, 1948, and thereafter until terminated by Caltex upon two days prior written notice. Caltexcould at any time cancel and terminate the agreement in case Boquiren ceased to sell Caltexproducts, 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 overBoquiren. 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 andthe latter could remove him or terminate his services at will; that the service stationbelonged to the company and bore its tradename and the operator sold only the productsof the company; that the equipment used by the operator belonged to the company andwere just loaned to the operator and the company took charge of their repair andmaintenance; that an employee of the company supervised the operator and conductedperiodic inspection of the company's gasoline and service station; that the price of theproducts sold by the operator was fixed by the company and not by the operator; and thatthe receipts signed by the operator indicated that he was a mere agent, the finding of theCourt of Appeals that the operator was an agent of the company and not an independentcontractor should not be disturbed.

To determine the nature of a contract courts do not have or are not bound to rely upon thename or title given it by the contracting parties, should thereby a controversy as to whatthey really had intended to enter into, but the way the contracting parties do or performtheir 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 theparties, 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 apparentrelationship of employer and independent contractor, and of avoiding liability for thenegligence of the employees about the station; but the company was not satisfied to allowsuch relationship to exist. The evidence shows that it immediately assumed control, andproceeded 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 ofcompelling submission to its orders. Having elected to assume control and to direct the


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means and methods by which the work has to be performed, it must be held liable for thenegligence of those performing service under its direction. We think the evidence wassufficient 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 cashinvoices were presented to show that Boquiren had bought said gasoline from Caltex. Neitherwas 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 amountof P2,000.00 collected by them on the insurance of the house. The deduction is now challengedas erroneous on the ground that Article 2207 of the New Civil Code, which provides for thesubrogation of the insurer to the rights of the insured, was not yet in effect when the loss tookplace. However, regardless of the silence of the law on this point at that time, the amount thatshould be recovered be measured by the damages actually suffered, otherwise the principleprohibiting 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 propertydestroyed, namely, P1,500.00, disregarding the testimony of one of the Ong children that saidproperty was worth P4,000.00. We agree that the court erred, since it is of common knowledgethat the assessment for taxation purposes is not an accurate gauge of fair market value, and inthis case should not prevail over positive evidence of such value. The heirs of Ong are thereforeentitled to P10,000.00.

Wherefore, the decision appealed from is reversed and respondents-appellees are held liablesolidarily 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.

G.R. No. 73998 November 14, 1988

PEDRO T. LAYUGAN, petitioner,vs.INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and TRAVELLERSMULTI-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 1of the thenIntermediate Appellate Court 2in AC-G.R. CV No. 01055, entitled "Pedro T. Layugan,


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Plaintiff-Appellee, versus Godofredo Isidro, Defendant-Appellant and Third-PartyPlaintiff-Appellee, versus Travellers Multi-Indemnity Corporation, Third Party Defendant-

Appellant, "which reversed and set aside the decision 3of the Regional Trial Court,Third Judicial Region, Branch XXVI, Cabanatuan City, and also dismissed thecomplaint, 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 asfollows: 5

xxx xxx xxx

Pedro T. Layugan filed an action for damages against Godofredo Isidro, alleging that onMay 15, 1979 while at Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a companionwere repairing the tire of their cargo truck with Plate No. SU-730 which was parked alongthe 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 wasinjured and hospitalized at Dr. Paulino J. Garcia Research and Medical Center and theOur Lady of Lourdes Hospital; that he spent TEN THOUSAND PESOS (Pl0,000.00) andwill incur more expenses as he recuperates from said injuries; that because of saidinjuries he would be deprived of a lifetime income in the sum of SEVENTY THOUSANDPESOS (P70,000.00); and that he agreed to pay his lawyer the sum of TEN THOUSANDPESOS (Pl0,000.00).

As prayed for by the plaintiffs counsel, the Court declared the defendant in default onOctober 12, 1979, and plaintiff's evidence was received ex-parteon January 11, 1978and February 19, 1980. The decision on behalf of the plaintiff was set aside to give achance 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 DanielSerrano. Defendant countered that the plaintiff was merely a bystander, not a truckhelper being a brother-in-law law of the driver of said truck; that the truck allegedly beingrepaired was parked, occupying almost half of the right lane towards Solano, NuevaVizcaya, right after the curve; that the proximate cause of the incident was the failure ofthe driver of the parked truck in installing the early warning device, hence the driver of theparked car should be liable for damages sustained by the truck of the herein defendant inthe amount of more than P20,000.00; that plaintiff being a mere bystander and hitchhikermust suffer all the damages he incurred. By way of counterclaim defendant alleged thatdue to plaintiffs baseless complaint he was constrained to engage the services of counselfor 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 admittinghis liability to the plaintiff, claimed that the third-party defendant is liable to the former forcontribution, indemnity and subrogation by virtue of their contract under Insurance PolicyNo. 11723 which covers the insurer's liability for damages arising from death, bodilyinjuries and damage to property.

Third-party defendant answered that, even assuming that the subject matter of thecomplaint is covered by a valid and existing insurance policy, its liability shall in no caseexceed the limit defined under the terms and conditions stated therein; that the complaint


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is premature as no claim has been submitted to the third party defendant as prescribedunder the Insurance Code; that the accident in question was approximately caused bythe carelessness and gross negligence of the plaintiff-, that by reason of the third-partycomplaint, third-party defendant was constrained to engage the services of counsel for afee of P3,000.00.

Pedro Layugan declared that he is a married man with one (1) child. He was employedas 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 assuch, he sustained injuries as a result of the bumping of the cargo truck they wererepairing at Baretbet, Bagabag, Nueva Vizcaya by the driver of the defendant. He used toearn 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, hesupported his family sufficiently, but after getting injured, his family is now beingsupported by his parents and brother.

GODOFREDO ISIDRO, defendant/third-party plaintiff, testified that his truck involved inthis 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 May30, 1978; that after he filed the insurance claim the insurance company paid him the sumof 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 themunicipal police of Bagabag, Nueva Vizcaya on May 16, 1979; that he knew theresponsibilities of a driver; that before leaving, he checked the truck. The truck ownerused to instruct him to be careful in driving. He bumped the truck being repaired by PedroLayugan, plaintiff, while the same was at a stop position. From the evidence presented, ithas been established clearly that the injuries sustained by the plaintiff was caused bydefendant's driver, Daniel Serrano. The police report confirmed the allegation of theplaintiff and admitted by Daniel Serrano on cross-examination. The collision dislodgedthe 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 frombelow the knee was later on amputated (Exh. "C") when gangrene had set in, therebyrendering him incapacitated for work depriving him of his income. (pp. 118 to 120, Recordon Appeal.)

xxx xxx xxx

Upon such findings, amply supported by the evidence on record, the trial court renderedits 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 andcompensatory 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 isordered to indemnify the defendant/third party plaintiff-.


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a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual and compensatorydamages; 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 ofboth appellants. 7

Hence, this petition.

The petitioner alleges the following errors. 8

1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE APPELLATE COURTACTED CORRECTLY IN REVERSING AND SETTING ASIDE AND DISMISSING THEPLAINTIFF-APPELLEE'S COMPLAINT.

2. WHETHER THE INTERMEDIATE APPELLATE COURT ACTED CORRECTLY INAPPLYING THE DOCTRINE OF "RES I

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