TORTS Assigned Cases

8/3/2019 TORTS Assigned Cases

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Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-36481-2 October 23, 1982

AMPARO C. SERVANDO, CLARA UY BICO, plaintiffs-appellees,vs.PHILIPPINE STEAM NAVIGATION CO., defendant-appellant.

Zoilo de la Cruz, Jr. & Associate for plaintiff-appellee Amparo Servando.

Benedicto, Sumbingco & Associate for appellee Clara Uy Bico.

Ross, Salcedo, del Rosario, Bito & Misa for defendant-appellant.

ESCOLIN, J.:

Th is appeal, originally broug h t to t h e Court of Appeals, seeks to set aside t h e decisionof t h e Court of First Instance of Negros Occidental in Civil Cases Nos. 7354 and 7428,declaring appellant P h ilippine Steam Navigation liable for damages for t h e loss of t h eappellees' cargoes as a result of a fire w h ich gutted t h e Bureau of Customs' ware h ousein Pulupandan, Negros Occidental.

Th e Court of Appeals certified t h e case to Us because only pure questions of law areraised t h erein.

Th e facts culled from t h e pleadings and t h e stipulations submitted by t h e parties are asfollows:

On November 6, 1963, appellees Clara Uy Bico and Amparo Servando loaded on boardth e appellant's vessel, FS-176, for carriage from Manila to Pulupandan, NegrosOccidental, t h e following cargoes, to wit:

Clara Uy Bico

1,528 cavans of rice valued

at P40,907.50;

Amparo Servando

44 cartons of colored paper,


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toys and general merc h andise valued at P1,070.50;

as evidenced by t h e corresponding bills of lading issued by t h e appellant. 1

Upon arrival of t h e vessel at Pulupandan, in t h e morning of November 18, 1963, t h ecargoes were disc h arged, complete and in good order, unto t h e ware h ouse of t h eBureau of Customs. At about 2:00 in t h e afternoon of t h e same day, said ware h ousewas razed by a fire of unknown origin, destroying appellees' cargoes. Before t h e fire,h owever, appellee Uy Bico was able to take delivery of 907 cavans of rice 2 Appellees'claims for t h e value of said goods were rejected by t h e appellant.

On t h e bases of t h e foregoing facts, t h e lower court rendered a decision, t h e decretalportion of w h ich reads as follows:

WHEREFORE, judgment is rendered as follows:

1. In case No. 7354, t h e defendant is h ereby ordered to pay t h e plaintiff Amparo C.Servando t h e aggregate sum of P1,070.50 wit h legal interest t h ereon from t h e date of t h efiling of t h e complaint until fully paid, and to pay t h e costs.

2. In case No. 7428, t h e defendant is h ereby ordered to pay to plaintiff Clara Uy Bico t h eaggregate sum of P16,625.00 wit h legal interest t h ereon from t h e date of t h e filing of t h ecomplaint until fully paid, and to pay t h e costs.

Article 1736 of t h e Civil Code imposes upon common carriers t h e duty to observeextraordinary diligence from t h e moment t h e goods are unconditionally placed in t h eir possession "until t h e same are delivered, actually or constructively, by t h e carrier to t h econsignee or to t h e person w h o h as a rig h t to receive t h em, wit h out prejudice to t h eprovisions of Article 1738. "

Th e court a quo h eld t h at t h e delivery of t h e s h ipment in question to t h e ware h ouse of th e Bureau of Customs is not t h e delivery contemplated by Article 1736; and since t h eburning of t h e ware h ouse occurred before actual or constructive delivery of t h e goods toth e appellees, t h e loss is c h argeable against t h e appellant.

It s h ould be pointed out, h owever, t h at in t h e bills of lading issued for t h e cargoes inquestion, t h e parties agreed to limit t h e responsibility of t h e carrier for t h e loss or damage t h at may be caused to t h e s h ipment by inserting t h erein t h e followingstipulation:

Clause 14. Carrier s h all not be responsible for loss or damage to s h ipments billed'owner's risk' unless suc h loss or damage is due to negligence of carrier. Nor s h all carrier be responsible for loss or damage caused by force majeure, dangers or accidents of t h esea or ot h er waters; war; public enemies; . . . fire . ...

We sustain t h e validity of t h e above stipulation; t h ere is not h ing t h erein t h at is contraryto law, morals or public policy.


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Appellees would contend t h at t h e above stipulation does not bind t h em because it wasprinted in fine letters on t h e back-of t h e bills of lading; and t h at t h ey did not sign t h esame. Th is argument overlooks t h e pronouncement of t h is Court in Ong Yiu vs. Court of

Appeals, promulgated June 29, 1979, 3 wh ere t h e same issue was resolved in t h is wise:

Wh ile it may be true t h at petitioner h ad not signed t h e plane ticket (Ex h . '12'), h e isnevert h eless bound by t h e provisions t h ereof. 'Suc h provisions h ave been h eld to be apart of t h e contract of carriage, and valid and binding upon t h e passenger regardless of th e latter's lack of knowledge or assent to t h e regulation'. It is w h at is known as a contractof 'ad h esion', in regards w h ich it h as been said t h at contracts of ad h esion w h erein oneparty imposes a ready made form of contract on t h e ot h er, as t h e plane ticket in t h e caseat bar, are contracts not entirely pro h ibited. Th e one w h o ad h eres to t h e contract is inreality free to reject it entirely; if h e ad h eres, h e gives h is consent." ( T olentino, Civil Code,Vol. IV, 1962 Ed., p. 462, citing Mr. Justice J.B.L. Reyes, Lawyer's Journal, Jan. 31,1951, p. 49).

Besides, t h e agreement contained in t h e above quoted Clause 14 is a mere iteration of th e basic principle of law written in Article 1 1 7 4 of t h e Civil Code:

Article 1174. Except in cases expressly specified by t h e law, or w h en it is ot h erwisedeclared by stipulation, or w h en t h e nature of t h e obligation requires t h e assumption of risk, no person s h all be responsible for t h ose events w h ich could not be foreseen, or wh ich , t h oug h foreseen, were inevitable.

Th us, w h ere fortuitous event or force majeure is t h e immediate and proximate cause of th e loss, t h e obligor is exempt from liability for non-performance. Th e Partidas, 4 th eantecedent of Article 1174 of t h e Civil Code, defines 'caso fortuito' as 'an event t h attakes place by accident and could not h ave been foreseen. Examples of t h is aredestruction of h ouses, unexpected fire, s h ipwreck, violence of robbers.'

In its dissertation of t h e p h rase 'caso fortuito' t h e Enciclopedia Juridicada Espanola 5 says: "In a legal sense and, consequently, also in relation to contracts, a 'caso fortuito'presents t h e following essential c h aracteristics: (1) t h e cause of t h e unforeseen andunexpected occurrence, or of t h e failure of t h e debtor to comply wit h h is obligation, mustbe independent of t h e h uman will; (2) it must be impossible to foresee t h e event w h ich constitutes t h e 'caso fortuito', or if it can be foreseen, it must be impossible to avoid; (3)th e occurrence must be suc h as to render it impossible for t h e debtor to fulfill h isobligation in a normal manner; and (4) t h e obligor must be free from any participation inth e aggravation of t h e injury resulting to t h e creditor." In t h e case at bar, t h e burning of th e customs ware h ouse was an extraordinary event w h ich h appened independently of th e will of t h e appellant. Th e latter could not h ave foreseen t h e event.

Th ere is not h ing in t h e record to s h ow t h at appellant carrier ,incurred in delay in t h eperformance of its obligation. It appears t h at appellant h ad not only notified appellees of th e arrival of t h eir s h ipment, but h ad demanded t h at t h e same be wit h drawn. In fact,pursuant to suc h demand, appellee Uy Bico h ad taken delivery of 907 cavans of ricebefore t h e burning of t h e ware h ouse.


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Nor can t h e appellant or its employees be c h arged wit h negligence. Th e storage of t h egoods in t h e Customs ware h ouse pending wit h drawal t h ereof by t h e appellees wasundoubtedly made wit h th eir knowledge and consent. Since t h e ware h ouse belonged toand was maintained by t h e government, it would be unfair to impute negligence to t h eappellant, t h e latter h aving no control w h atsoever over t h e same.

Th e lower court in its decision relied on t h e ruling laid down in Y u Biao Sontua vs.Ossorio 6, wh ere t h is Court h eld t h e defendant liable for damages arising from a firecaused by t h e negligence of t h e defendant's employees w h ile loading cases of gasolineand petroleon products. But unlike in t h e said case, t h ere is not a s h red of proof in t h epresent case t h at t h e cause of t h e fire t h at broke out in t h e Custom's ware h ouse was inany way attributable to t h e negligence of t h e appellant or its employees. Under t h ecircumstances, t h e appellant is plainly not responsible.

WHEREFORE, t h e judgment appealed from is h ereby set aside. No costs.

SO ORDERED.Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos and De Castro, JJ.,concur.

Separate Opinions

AQUINO, J., concurring:

I concur. Under article 1738 of t h e Civil Code "t h e extraordinary liability of t h e commoncarrier continues to be operative even during t h e time t h e goods are stored in t h eware h ouse of t h e carrier at t h e place of destination, until t h e consignee h as beenadvised of t h e arrival of t h e goods and h as h ad reasonable opportunity t h ereafter toremove t h em or ot h erwise dispose of t h em".

From t h e time t h e goods in question were deposited in t h e Bureau of Customs'

wareh

ouse in th

e morning of th

eir arrival up to two o' clock in th

e afternoon of th

e sameday, w h en t h e ware h ouse was burned, Amparo C. Servando and Clara Uy Bico, t h econsignees, h ad reasonable opportunity to remove t h e goods. Clara h ad removed moreth an one- h alf of t h e rice consigned to h er.

Moreover, t h e s h ipping company h ad no more control and responsibility over t h e goodsafter t h ey were deposited in t h e customs ware h ouse by t h e arrastre and stevedoringoperator.


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No amount of extraordinary diligence on t h e part of t h e carrier could h ave prevented t h eloss of t h e goods by fire w h ich was of accidental origin.

Under t h ose circumstances, it would not be legal and just to h old t h e carrier liable to t h econsignees for t h e loss of t h e goods. Th e consignees s h ould bear t h e loss w h ich was

due to a fortuitous event.

Separate Opinions

AQUINO, J., concurring:

I concur. Under article 1738 of t h e Civil Code "t h e extraordinary liability of t h e common

carrier continues to be operative even during th

e time th

e goods are stored in th

eware h ouse of t h e carrier at t h e place of destination, until t h e consignee h as beenadvised of t h e arrival of t h e goods and h as h ad reasonable opportunity t h ereafter toremove t h em or ot h erwise dispose of t h em".

From t h e time t h e goods in question were deposited in t h e Bureau of Customs'ware h ouse in t h e morning of t h eir arrival up to two o' clock in t h e afternoon of t h e sameday, w h en t h e ware h ouse was burned, Amparo C. Servando and Clara Uy Bico, t h econsignees, h ad reasonable opportunity to remove t h e goods. Clara h ad removed moreth an one- h alf of t h e rice consigned to h er.

Moreover, th

e sh

ipping companyh

ad no more control and responsibility over th

e goodsafter t h ey were deposited in t h e customs ware h ouse by t h e arrastre and stevedoringoperator.

No amount of extraordinary diligence on t h e part of t h e carrier could h ave prevented t h eloss of t h e goods by fire w h ich was of accidental origin.

Under t h ose circumstances, it would not be legal and just to h old t h e carrier liable to t h econsignees for t h e loss of t h e goods. Th e consignees s h ould bear t h e loss w h ich wasdue to a fortuitous event.

Footnotes

1 Ex h ibits A, B, C, D, E, F, G and H.

2 Par. IV, Complaint; p. 23, Record on Appeal.

Page 836

3 91 SCRA 224.


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4 Law 11, T itle 33, Partida 7.

5 Enciclopedia Juridicada Espanola.

6 43 P h il. 511.

Republic of the PhilippinesSUPREME COURT Manila

SECOND DIVISION

G.R. No. L-53401 November 6, 1989

THE ILOCOS NORTE ELECTRIC COMPANY, petitioner,vs.HONORABLE COURT O F APPEALS, ( F irst Division) LILIAN JUAN LUIS, JANE JUAN YABES,VIRGINIA JUAN CID, GLORIA JUAN CARAG, and PURISIMA JUAN, respondents.

H erman D. Coloma for petitioner.

Glicerio S. Ferrer for private respondents.

PARAS, J.:

Soug h t to be reversed in t h is petition is t h e Decision * of t h e respondent Court of Appeals' First Division,

setting aside t h e judgment of t h e t h en Court of First Instance (CFI) of Ilocos Norte, wit h th e followingdispositive portion:

WHEREFORE, t h e appealed judgment is h ereby set aside and anot h er rendered in its st ead w h ereby defendant ish ereby sentenced to pay plaintiffs actual damages of P30,229.45; compensatory damages of P50,000.00; exemplarydamages of P10,000.00; attorney's fees of P3,000.00; plus t h e costs of suit in bot h instances. (p. 27 Rollo)

Basically, t h is case involves a clas h of evidence w h ereby bot h patties strive for t h e recognition of t h eir respective versions of t h e scenario from w h ich th e disputed claims originate. Th e respondent Court of

Appeals (CA) summarized t h e evidence of t h e parties as follows:

From t h e evidence of plaintiffs it appears t h at in t h e evening of June 28 until t h e early morning of June 29, 1967 astrong typ h oon by t h e code name "Gening" buffeted t h e province of Ilocos Norte, bringing h eavy rains and consequentflooding in its wake. Between 5:30 and 6:00 A.M. on June 29, 1967, after t h e typ h oon h ad abated and w h en t h efloodwaters were beginning to recede t h e deceased Isabel Lao Juan, fondly called Nana Belen, ventured out of t h eh ouse of h er son-in-law, Antonio Yabes, on No. 19 Guerrero Street, Laoag City, and proceeded nort h ward towards t h edirection of t h e Five Sisters Emporium, of w h ich s h e was t h e owner and proprietress, to look after t h e merc h andiseth erein t h at mig h t h ave been damaged. Wading in waist-deep flood on Guerrero, t h e deceased was followed by AidaBulong, a Salesgirl at t h e Five Sisters Grocery, also owned by t h e deceased, and by Linda Alonzo Estavillo, a ticketseller at t h e YJ Cinema, w h ich was partly owned by t h e deceased. Aida and Linda walked side by side at a di stance of between 5 and 6 meters be h ind t h e deceased, Suddenly, t h e deceased screamed "Ay" and quickly sank into t h e water.Th e two girls attempted to h elp, but fear dissuaded t h em from doing so because on t h e spot w h ere t h e deceased sankth ey saw an electric wire dangling from a post and moving in snake-like fas h ion in t h e water. Upon t h eir s h outs for h elp,Ernesto dela Cruz came out of t h e h ouse of Antonio Yabes. Ernesto tri ed to go to t h e deceased, but at four metersaway from h er h e turned back s h outing t h at t h e water was grounded. Aida and Linda prodded Ernesto to seek h elpfrom Antonio Yabes at t h e YJ Cinema building w h ich was four or five blocks away.


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W h en Antonio Yabes was informed by Ernesto t h at h is mot h er-in law h ad been electrocuted, h e acted immediately.With h is wife Jane, toget h er wit h Ernesto and one Joe Ros, Yabes passed by t h e City Hall of Laoag to request t h epolice to ask t h e people of defendant Ilocos Norte Electric Company or INELCO to cut off t h e electric current. Th en t h eparty waded to t h e h ouse on Guerrero Street. Th e floodwater was receding and t h e lig h ts inside t h e h ouse were outindicating t h at t h e electric current h ad been cut off in Guerrero. Yabes instructed h is boys to fis h for t h e body of t h edeceased. Th e body was recovered about two meters from an electric post.

In anot h er place, at about 4:00 A.M. on t h at fateful date, June 29, 1967, Engineer Antonio Juan, Power Plant Engineer

of th e National Power Corporation at t h e Laoag Diesel-Electric Plant, noticed certain fluctuations in t h eir electric meter wh ich indicated suc h abnormalities as grounded or s h ort-circuited lines. Between 6:00 and 6:30 A.M., h e set out of t h eLaoag NPC Compound on an inspection. On t h e way, h e saw grounded and disconnected lines. Electric lines wereh anging from t h e posts to t h e ground. Since h e could not see any INELCO lineman, h e decided to go to t h e INELCOOffice at t h e Life Th eatre on Rizal Street by way of Guerrero. As h e turned rig h t at t h e intersection of Guerrero andRizal, h e saw an electric wire about 30 meters long strung across t h e street "and t h e ot h er end was seeming to playwith th e current of t h e water." (p. 64, T SN, Oct. 24, 1972) Finding t h e Office of t h e INELCO still closed, and seeing nolineman t h erein, h e returned to t h e NPC Compound.

At about 8:10 A.M., Engr. Juan went out of t h e compound again on anot h er inspection trip. Having learned of t h e deat h of Isabel Lao Juan, h e passed by t h e h ouse of t h e deceased at t h e corner of Guerrero and M.H. del Pilar streets towh ich th e body h ad been taken. Using t h e resuscitator w h ich was a standard equipment in h is jeep and employing t h eskill h e acquired from an in service tr aining on resuscitation, h e tried to revive t h e deceased. His efforts proved futil e.Rigor mortis was setting in. On t h e left palm of t h e deceased, Engr. Juan noticed a h ollow wound. Proceeding to t h eINELCO Office, h e met two linemen on t h e way. He told t h em about t h e grounded lines of t h e INELCO In t h e afternoonof th e same day, h e went on a t h ird inspection trip preparatory to t h e restoration of power. Th e dangling wire h e saw onGuerrero early in t h e morning of June 29, 1967 was no longer t h ere.

Many people came to t h e h ouse at t h e corner of Guerrero and M.H. del Pilar after learning t h at t h e deceased h ad beenelectrocuted. Among t h e sympat h izers was Dr. Jovencio Castro, Municipal Healt h Officer of Sarrat, Ilocos Norte. Uponth e request of t h e relatives of t h e deceased, Dr. Castro examined t h e body at about 8:00 A.M. on June 29, 1967. Th eskin was grayis h or, in medical parlance, cyanotic, w h ich indicated deat h by electrocution. On t h e left palm, t h e doctor found an "electrically c h arged wound" (Ex h . C-1: p. 101, T SN, Nov. 28, 1972) or a first degree burn. About t h e base of th e t h umb on t h e left h and was a burned wound. (Ex h . C-2, pp. 102-103, I bid .) Th e certificate of deat h prepared by Dr.Castro stated t h e cause of' deat h as ,'circulatory s h ock electrocution" (Ex h . I; p. 103, I bid. ).

In defense and exculpation, defendant presented t h e testimonies of its officers and employees, namely, Conrado Asis,electric engineer; Loreto Abijero, collector-inspector; Fabico Abijero, lineman; and Julio Agcaoili, president-manager of INELCO Th roug h th e testimonies of t h ese witnesses, defendant soug h t to prove t h at on and even before June 29,1967 t h e electric service system of t h e INELCO in t h e w h ole franc h ise area, including Area No. 9 w h ich covered t h eresidence of Antonio Yabes at No. 18 Guerrero Street, did not suffer from any defect t h at mig h t constitute a h azard tolife and property. Th e service lines, devices and ot h er INELCO equipment in Area No. 9 h ad been newly-installed prior to t h e date in question. As a public service operator and in line wit h its business of supplying electric current to t h epublic, defendant h ad installed safety devices to prevent and avoid injuries to persons and damage to property in caseof natural calamities suc h as floods, typ h oons, fire and ot h ers. Defendant h ad 12 linesmen c h arged wit h th e duty of making a round-t h e-clock c h eck-up of t h e areas respectively assigned to t h em.

Defendant asserts t h at alt h oug h a strong typ h oon struck t h e province of Ilocos Norte on June 29, 1967, putting tostreets of Laoag City under water, only a few known places in Laoag were reported to h ave suffered damaged electriclines, namely, at t h e sout h ern approac h of th e Marcos Bridge w h ich was was h ed away and w h ere t h e INELCO linesand posts collapsed; in t h e eastern part near t h e residence of t h e late Governor Simeon Mandac; in t h e far nort h near th e defendant's power plant at t h e corner of Segundo and Castro Streets, Laoag City and at t h e far nort h west side,near t h e premises of t h e Ilocos Norte National Hig h Sc h ool. Fabico Abijero, testified t h at in t h e early morning before 6o'clock on June 29, 1967 h e passed by t h e intersection of Rizal and Guerrero Streets to switc h off th e street lig h ts in

Area No. 9. He did not see any cut or broken wires in or near t h e vicinity. W h at h e saw were many people fis h ing outth e body of Isabel Lao Juan.

A witness in t h e person of Dr. Antonio Briones was presented by t h e defense to s h ow t h at t h e deceased could not h avedied of electrocution Substantially, t h e testimony of t h e doctor is as follows: Wit h out an autopsy on t h e cadaver of t h evictim, no doctor, not even a medicolegal expert, can speculate as to t h e real cause of deat h . Cyanosis could not h ave

been found in t h e body of t h e deceased t h ree h ours after h er deat h , because cyanosis w h ich means lack of oxygencirculating in t h e blood and rendering t h e color of t h e skin purplis h , appears only in a live person. Th e presence of t h eelongated burn in t h e left palm of t h e deceased (Ex h ibits C-1 and C-2) is not sufficient to establis h h er deat h byelectrocution; since burns caused by electricity are more or less round in s h ape and wit h points of entry and exit. Hadth e deceased h eld t h e let h al wire for a long time, t h e laceration in h er palm would h ave been bigger and t h e injury moremassive. (CA Decision, pp. 18-21, Rollo)

An action for damages in t h e aggregate amount of P250,000 was instituted by t h e h eirs of t h e deceasedwith th e aforesaid CFI on June 24, 1968. In its Answer (Vide, Record on Appeal, p. 55, Rollo), petitioner advanced t h e t h eory, as a special defense, t h at t h e deceased could h ave died simply eit h er by drowningor by electrocution due to negligence attributable only to h erself and not to petitioner. In t h is regard, it was


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pointed out t h at t h e deceased, wit h out petitioner's knowledge, caused t h e installation of a burglar deterrent by connecting a wire from t h e main h ouse to t h e iron gate and fence of steel matting, t h us,ch arging t h e latter wit h electric current w h enever t h e switc h is on. Petitioner t h en conjectures t h at t h eswitc h to said burglar deterrent must h ave been left on, h ence, causing t h e deceased's electrocutionwh en s h e tried to open h er gate t h at early morning of June 29, 1967. After due trial, t h e CFI found t h efacts in favor of petitioner and dismissed t h e complaint but awarded to t h e latter P25,000 in moraldamages and attorney's fees of P45,000. An appeal was filed wit h th e CA w h ich issued t h e controverteddecision.

In t h is petition for review t h e petitioner assigns t h e following errors committed by t h e respondent CA:

1. Th e respondent Court of Appeals committed grave abuse of discretion and error in consideringth e purely h earsay alleged declarations of Ernesto de la Cruz as part of t h e res gestae .

2. Th e respondent Court of Appeals committed grave abuse of discretion and error in h olding t h atth e strong typ h oon "Gening" w h ich struck Laoag City and Ilocos Norte on June 29, 1967 and t h eflood and deluge it broug h t in its wake were not fortuitous events and did not exonerate petitioner-company from liability for t h e deat h of Isabel Lao Juan.

3. Th e respondent Court of Appeals gravely abused its discretion and erred in not applying t h elegal principle of "assumption of risk" in t h e present case to bar private respondents from

collecting damages from petitioner company. 4. Th at t h e respondent Court of Appeals gravely erred and abused its discretion in completelyreversing t h e findings of fact of t h e trial court.

5. Th e findings of fact of t h e respondent Court of Appeals are reversible under t h e recognizedexceptions.

6. Th e trial court did not err in awarding moral damages and attorney's fees to defendantcorporation, now petitioner company.

7. Assuming arguendo th at petitioner company may be h eld liable from t h e deat h of th e lateIsabel Lao Juan, t h e damages granted by respondent Court of Appeals are improper andex h orbitant. (Petitioners Memorandum, p. 133, Rollo)

Basically, t h ree main issues are apparent: (1) w h et h er or not t h e deceased died of electrocution; (2)wh et h er or not petitioner may be h eld liable for t h e deceased's deat h ; and (3) w h et h er or not t h erespondent CA's substitution of t h e trial court's factual findings for its own was proper.

In considering t h e first issue, it is Our view t h at t h e same be resolved in t h e affirmative. By apreponderance of evidence, private respondents were able to s h ow t h at t h e deceased died of electrocution, a conclusion w h ich can be primarily derived from t h e p h otograp h ed burnt wounds (Ex h ibits"C", "C-1", "C-2") on t h e left palm of t h e former. Suc h wounds undoubtedly point to t h e fact t h at t h edeceased h ad clutc h ed a live wire of t h e petitioner. Th is was corroborated by t h e testimony of Dr.Jovencio Castro w h o actually examined t h e body of t h e deceased a few h ours after t h e deat h anddescribed t h e said burnt wounds as a "first degree burn" (p. 144, T SN, December 11, 1972) and t h at t h eywere "electrically c h arged" (p. 102, T SN, November 28, 1972). Furt h ermore, witnesses Linda AlonzoEstavillo and Aida Bulong added t h at after t h e deceased screamed "Ay" and sank into t h e water, t h eytried to render some h elp but were overcome wit h fear by t h e sig h t of an electric wire dangling from anelectric post, moving in t h e water in a snake-like fas h ion ( supra ). Th e foregoing t h erefore justifies t h erespondent CA in concluding t h at "(t) h e nature of t h e wounds as described by t h e witnesses w h o sawth em can lead to no ot h er conclusion t h an t h at t h ey were "burns," and t h ere was not h ing else in t h e streetwh ere t h e victim was wading t h ru w h ich could cause a burn except t h e dangling live wire of defendantcompany" (CA Decision, p. 22, Rollo).

But in order to escape liability, petitioner ventures into t h e t h eory t h at t h e deceased was electrocuted, if suc h was really t h e case w h en s h e tried to open h er steel gate, w h ich was electrically c h arged by an


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electric wire s h e h erself caused to install to serve as a burglar deterrent. Petitioner suggests t h at t h eswitc h to said burglar alarm was left on. But t h is is mere speculation, not backed up wit h evidence. Asrequired by t h e Rules, "eac h party must prove h is own affirmative allegations." (Rule 131, Sec. 1).Nevert h eless, t h e CA significantly noted t h at "during t h e trial, t h is t h eory was abandoned" by t h epetitioner (CA Decision, p. 23, Rollo).

Furt h ermore t h e CA properly applied t h e principle of res gestae . Th e CA said: Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were wit h th e deceased during t h at fateful morningof June 29, 1967. Th is Court h as not been offered any sufficient reason t o discredit t h e testimonies of t h ese two youngladies. Th ey were one in t h e affirmation t h at t h e deceased, w h ile wading in t h e waist-deep flood on Guerrero Street fiveor six meters a h ead of t h em, suddenly screamed "Ay" and quickly sank into t h e water. W h en t h ey approac h ed t h edeceased to h elp, t h ey were stopped by t h e sig h t of an electric wire dangling from a post and moving in snake-likefas h ion in t h e water. Ernesto dela Cruz also tri ed to approac h th e deceased, but h e turned back s h outing t h at t h e w ater w as grounded . Th ese bits of evidence carry muc h weig h t. For t h e subject of t h e testimonies was a startling occurrence,and t h e declarations may be considered part of t h e res gestae . (CA Decision, p. 21, Rollo)

For t h e admission of t h e res gestae in evidence, t h e following requisites must be present: (1) t h at t h eprincipal act, t h e res gestae , be a startling occurrence; (2) t h at t h e statements were made before t h edeclarant h ad time to contrive or devise; (3) t h at t h e statements made must concern t h e occurrence inquestion and its immediately attending circumstances (People vs. Ner, 28 SCRA 1151; People vs.

Balbas, 122 SCRA 959). We do not find any abuse of discretion on t h e CA' part in view of t h e satisfactionof said requisites in t h e case at bar.

Th e statements made relative to t h e startling occurrence are admitted in evidence precisely as anexception to t h e h earsay rule on t h e grounds of trustwort h iness and necessity. " T rustwort h iness" becauseth e statements are made instinctively (Wesley vs. State, 53 Ala. 182), and "necessity" because suc h natural and spontaneous utterances are more convincing t h an t h e testimony of t h e same person on t h estand (Mobile vs. Ascraft 48 Ala. 31). Th erefore, t h e fact t h at t h e declarant, Ernesto de la Cruz, was notpresented to testify does not make t h e testimony of Linda Alonzo Estavillo and Aida Bulong h earsay sinceth e said declaration is part of t h e res gestae . Similarly, We considered part of t h e res gestae aconversation between two accused immediately after commission of t h e crime as over h eard by aprosecution witness (People vs. Reyes, 82 P h il. 563).

Wh ile it may be true t h at, as petitioner argues (vide petitioner's Memorandum, p. 135, Rollo), Ernesto dela Cruz was not an actual witness to t h e instant w h en t h e deceased sank into t h e waist-deep water, h eacted upon t h e call of h elp of Aida Bulong and Linda Alonzo Estavillo wit h th e knowledge of, andimmediately after, t h e sinking of t h e deceased. In fact t h e startling event h ad not yet ceased w h enErnesto de la Cruz entered t h e scene considering t h at t h e victim remained submerged. Under suc h acircumstance, it is undeniable t h at a state of mind c h aracterized by nervous excitement h ad beentriggered in Ernesto de la Cruz's being as anybody under t h e same contingency could h ave experienced.

As suc h , We cannot h onestly exclude h is s h outs t h at t h e water was grounded from t h e res gestae justbecause h e did not actually see t h e sinking of t h e deceased nor h ear h er scream "Ay."

Neit h er can We dismiss t h e said declaration as a mere opinion of Ernesto de la Cruz. W h ile We concedeto t h e submission t h at t h e statement must be one of facts rat h er t h an opinion, We cannot agree to t h eproposition t h at t h e one made by h im was a mere opinion. On t h e contrary, h is s h out was a translation of

an actuality as perceived by h im t h roug h h is sense of touc h .

Finally, We do not agree t h at t h e taking of Ernesto de la Cruz' testimony was suppressed by t h e privaterespondents, t h us, is presumed to be adverse to t h em pursuant to Section 5(e), Rule 131. For t h eapplication of said Rule as against a party to a case, it is necessary t h at t h e evidence alleged to besuppressed is available only to said party (People vs. T ulale, L-7233, 18 May 1955, 97 P h il. 953). Th epresumption does not operate if t h e evidence in question is equally available to bot h parties(StaplesHowe Printing Co. vs. Bldg. and Loan Assn., 36 P h il. 421). It is clear from t h e records t h at


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petitioner could h ave called Ernesto de la Cruz to t h e witness stand. Th is, precisely, was Linda AlonzoEstavillo's suggestion to petitioner's counsel w h en s h e testified on cross examination:

Q. And t h at Erning de la Cruz, h ow far did h e reac h from t h e gate of t h e h ouse?

A. Well, you can ask t h at matter from h im sir because h e is h ere. ( T SN, p. 30, 26 Sept. 1972)

Th e foregoing s h ows t h at petitioner h ad t h e opportunity to verify t h e declarations of Ernesto de la Cruzwh ich , if truly adverse to private respondent, would h ave h elped its case. However, due to reasons knownonly to petitioner, t h e opportunity was not taken.

Coming now to t h e second issue, We tip t h e scales in t h e private respondents' favor. Th e respondent CAacted correctly in disposing t h e argument t h at petitioner be exonerated from liability since typ h oons andfloods are fortuitous events. W h ile it is true t h at typ h oons and floods are considered Acts of God for w h ich no person may be h eld responsible, it was not said eventuality w h ich directly caused t h e victim's deat h . Itwas t h roug h th e intervention of petitioner's negligence t h at deat h took place. We subscribe to t h econclusions of t h e respondent CA w h en it found:

On t h e issue w h et h er or not t h e defendant incurred liability for t h e electrocution and consequent deat h of th e late IsabelLao Juan, defendant called to t h e witness-stand its electrical engineer, c h ief lineman, and lineman to s h ow exercise of extraordinary diligence and to negate t h e c h arge of negligence. Th e witnesses testified in a general way about t h eir duties and t h e measures w h ich defendant usually adopts to prevent h azards to life and limb. From t h ese testimonies,th e lower court found "t h at t h e electric lines and ot h er equipment of defendant corporation were properly maintained bya well-trained team of lineman, tec h nicians and engineers working around t h e clock to insure t h at t h ese equipmentswere in excellent condition at all t imes." (P. 40, Record on Appeal) Th e finding of t h e lower court, h owever, was basedon w h at t h e defendant's employees were supposed to do, not on w h at t h ey actually did or failed to do on the date inquestion, and not on t h e occasion of t h e emergency situation broug h t about by t h e typ h oon.

Th e lower court made a mistake in assuming t h at defendant's employees worked around t h e clock during t h eoccurrence of t h e typ h oon on t h e nig h t of June 28 and until t h e early morning of June 29, 1967, Engr. Antonio Juan of th e National Power Corporation affirmed t h at w h en h e first set out on an inspection trip between 6:00 and 6:30 A.M. onJune 29, 1967, h e saw grounded and disconnected electric lines of t h e defendant but he sa w no INEL CO lineman . Th eINELCO Office at t h e Life t h eatre on Rizal Street was still closed . (pp. 63-64, T SN, Oct. 24, 1972) Even t h e witnessesof defendant contradict t h e finding of t h e lower court. Conrado Asis, defendant's electrical engineer, testified t h at h econducted a general inspection of t h e franc h ise area of t h e INELCO only on June 30, 1967 , t h e day following t h etyph oon. Th e reason h e gave for t h e delay was t h at all t h eir ve h icles were submerged. (p. 337, T SN, July 20, 1973)

According to Asis, h e arrived at h is office at 8:00 A.M. on June 30 and after briefing h is men on w h at to do t h ey startedout. (p. 338, lbid ) One or two days after t h e typ h oon, t h e INELCO people h eard "rumors t h at someone waselectrocuted" so h e sent one of h is men to t h e place but h is man reported back t h at t h ere was no damaged wire. (p.385, I d .) Loreto Abijero, c h ief lineman of defendant, corroborated Engr. Juan. He testified t h at at about 8:00 A.M. onJune 29, 1967 Engr. Juan came to t h e INELCO plant and asked t h e INELCO people to inspect t h eir lines. He went wit h Engr. Juan and t h eir inspection lasted from 8:00 A.M. to 12:00 noon. (pp. 460, 465, T SN, Jan. 28, 1975) Fabico Abijerolineman of defendant, testified t h at at about 6:00 on June 29, 1967 t h e typ h oon ceased. At t h at time, h e was at t h emain building of t h e Divine Word College of Laoag w h ere h e h ad taken h is family for refuge. (pp. 510-511, I bid. )

In times of calamities suc h as t h e one w h ich occurred in Laoag City on t h e nig h t of June 28 until t h e early h ours of June 29, 1967, extraordinary diligence requires a supplier of electricity to be in constant vigil to prevent or avoid anyprobable incident t h at mig h t imperil life or limb. Th e evidence does not s h ow t h at defendant did t h at. On t h e contrary,evidence discloses t h at t h ere were no men (linemen or ot h erwise) policing t h e area, nor even manning its office. (CADecision, pp. 24-25, Rollo)

Indeed, under t h e circumstances of t h e case, petitioner was negligent in seeing to it t h at no h arm is doneto t h e general public"... considering t h at electricity is an agency, subtle and deadly, t h e measure of carerequired of electric companies must be commensurate wit h or proportionate to t h e danger. Th e duty of exercising t h is h igh degree of diligence and care extends to every place w h ere persons h ave a rig h t tobe" (Astudillo vs. Manila Electric, 55 P h il. 427). Th e negligence of petitioner h aving been s h own, it maynot now absolve itself from liability by arguing t h at t h e victim's deat h was solely due to a fortuitous event."Wh en an act of God combines or concurs wit h th e negligence of t h e defendant to produce an injury, t h edefendant is liable if t h e injury would not h ave resulted but for h is own negligent conduct or omission" (38

Am. Jur., p. 649).


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Likewise, t h e maxim "volenti non fit injuria" relied upon by petitioner finds no application in t h e case atbar. It is imperative to note t h e surrounding circumstances w h ich impelled t h e deceased to leave t h ecomforts of a roof and brave t h e subsiding typ h oon. As testified by Linda Alonzo Estavillo (see T SN, p. 5,26 Sept. 1972) and Aida Bulong (see T SN, p. 43, 26 Sept. 1972), t h e deceased, accompanied by t h eformer two, were on t h eir way to t h e latter's grocery store "to see to it t h at t h e goods were not flooded."

As suc h , s h all We punis h h er for exercising h er rig h t to protect h er property from t h e floods by imputingupon h er t h e unfavorable presumption t h at s h e assumed t h e risk of personal injury? Definitely not. For ith as been h eld t h at a person is excused from t h e force of t h e rule, t h at w h en h e voluntarily assents to aknown danger h e must abide by t h e consequences, if an emergency is found to exist or if t h e life or property of anot h er is in peril (65A C.S.C. Negligence(174(5), p. 301), or w h en h e seeks to rescue h isendangered property (Harper and James, " Th e Law of T orts." Little, Brown and Co., 1956, v. 2, p. 1167).Clearly, an emergency was at h and as t h e deceased's property, a source of h er liveli h ood, was faced wit h an impending loss. Furt h ermore, t h e deceased, at t h e time t h e fatal incident occurred, was at a placewh ere s h e h ad a rig h t to be wit h out regard to petitioner's consent as s h e was on h er way to protect h er merc h andise. Hence, private respondents, as h eirs, may not be barred from recovering damages as aresult of t h e deat h caused by petitioner's negligence ( ibid ., p. 1165, 1166).

But petitioner assails t h e CA for h aving abused its discretion in completely reversing t h e trial court'sfindings of fact, pointing to t h e testimonies of t h ree of its employees its electrical engineer, collector-inspector, lineman, and president-manager to t h e effect t h at it h ad exercised t h e degree of diligencerequired of it in keeping its electric lines free from defects t h at may imperil life and limb. Likewise, t h e saidemployees of petitioner categorically disowned t h e fatal wires as t h ey appear in two p h otograp h s takenon t h e afternoon of June 29, 1967 (Ex h s. "D" and "E"), suggesting t h at said wires were just h ooked to t h eelectric post (petitioner's Memorandum, p. 170, Rollo). However, as t h e CA properly h eld, "(t) h e finding of th e lower court ... was based on w h at t h e defendant's employees were supposed to do, not on w h at t h eyactually did or failed to do on the date in question, and not on t h e occasion of t h e emergency situation broug h t about by t h e typ h oon" (CA Decision, p. 25, Rollo). And as found by t h e CA, w h ich We h avealready reiterated above, petitioner was in fact negligent. In a like manner, petitioner's denial of owners h ipof t h e several wires cannot stand t h e logical conclusion reac h ed by t h e CA w h en it h eld t h at "(t) h e natureof t h e wounds as described by t h e witnesses w h o saw t h em can lead to no ot h er conclusion t h an t h atth ey were 'burns', and t h ere was not h ing else in t h e street w h ere t h e victim was wading t h ru w h ich couldcause a burn except t h e dangling live wire of defendant company" ( supra ).

"Wh en a storm occurs t h at is liable to prostrate t h e wires, due care requires prompt efforts to discover and repair broken lines" (Cooley on T orts, 4t h ed., v. 3, p. 474). Th e fact is t h at w h en Engineer AntonioJuan of t h e National Power Corporation set out in t h e early morning of June 29, 1967 on an inspectiontour, h e saw grounded and disconnected lines h anging from posts to t h e ground but did not see anyINELCO lineman eit h er in t h e streets or at t h e INELCO office (vide, CA Decision, supra ). Th e foregoings h ows t h at petitioner's duty to exercise extraordinary diligence under t h e circumstance was not observed,confirming t h e negligence of petitioner. T o aggravate matters, t h e CA found:

. . .even before June 28 t h e people in Laoag were already alerted about t h e impending typ h oon, t h roug h radioannouncements. Even t h e fire department of t h e city announced t h e coming of t h e big flood. (pp. 532-534, T SN, Marc h 13, 1975) At t h e INELCO irregularities in t h e flow of electric current were noted because "amperes of t h e switc h voltswere moving". And yet, despite t h ese danger signals, INELCO h ad to wait for Engr. Juan to request t h at defendant'sswitc h be cut off but t h e h arm was done. Asked w h y th e delay, Loreto Abijero answered t h at h e "was not t h e mac h inetender of t h e electric plant to switc h off th e current." (pp. 467-468, I bid .) How very c h aracteristic of gross ineffici ency!(CA Decision, p. 26, Rollo)

From t h e preceding, We find t h at t h e CA did not abuse its discretion in reversing t h e trial court's findingsbut tediously considered t h e factual circumstances at h and pursuant to its power to review questions of fact raised from t h e decision of t h e Regional T rial Court, formerly t h e Court of First Instance (see sec. 9,BP 129).

In considering t h e liability of petitioner, t h e respondent CA awarded t h e following in private respondent'sfavor: P30,229.45 in actual damages (i.e., P12,000 for t h e victim's deat h and P18,229.45 for funeralexpenses); P50,000 in compensatory damages, computed in accordance wit h th e formula set in t h e Villa-


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Rey T ransit case (31 SCRA 511) wit h th e base of P15,000 as average annual income of t h e deceased;P10,000 in exemplary damages; P3,000 attorney's fees; and costs of suit. Except for t h e award of P12,000 as compensation for t h e victim's deat h , We affirm t h e respondent CA's award for damages andattorney's fees. Pusuant to recent jurisprudence (People vs. Mananquil, 132 SCRA 196; People vs.T raya, 147 SCRA 381), We increase t h e said award of P12,000 to P30,000, t h us, increasing t h e totalactual damages to P48,229.45.

Th e exclusion of moral damages and attorney's fees awarded by t h e lower court was properly made byth e respondent CA, t h e c h arge of malice and bad fait h on t h e part of respondents in instituting h is casebeing a mere product of wis h ful th inking and speculation. Award of damages and attorney's fees isunwarranted w h ere t h e action was filed in good fait h ; th ere s h ould be no penalty on t h e rig h t to litigate(Espiritu vs. CA, 137 SCRA 50). If damage results from a person's exercising h is legal rig h ts, it isdamnum absque injuria (Auyong Hian vs. C T A, 59 SCRA 110).

WHEREFORE, t h e questioned decision of t h e respondent, except for t h e slig h t modification t h at actualdamages be increased to P48,229.45 is h ereby AFFIRMED.

SO ORDERED.

Melencio- H errera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.

F ootnotes

* Penned by t h en Acting Presiding Justice Lourdes P. San Diego and concurred in by Justices Samuel F. Reyes andLino M. Patajo.

Th e Lawp h il Project - Arellano Law Foundation

THIRD DIVISION

G.R. No. 79688. February 1, 1996

PLEASANTVILLE DEVELOPMENT CORPORATION , Petitioner , vs. COURT OFAPPEALS, WILSON KEE, C.T. TORRES ENTERPRISES, INC. and ELDRED

JARDINICO , Respondent.

D E C I S I O N

PANGANIBAN, J .:

Is a lot buyer who constructs improvements on the wrong property erroneously delivered by theowners agent, a builder in good faith? This is the main issue resolved in this petition for reviewon certiorari to reverse the Decision 1 of the Court of Appeals 2 in CA-G.R. SP No. 11040,

promulgated on August 20, 1987.


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B y resolution dated November 13, 1995 , the First Division of this Court resolved to transfer thiscase (along with several others) to the Third Division. After due deliberation and consultation,the Court assigned the writing of this Decision to the undersigned ponente.

The Fac ts

The facts, as found by respondent Court, are as follows:

Edith Robillo purchased from petitioner a parcel of land designated as Lot 9, Phase II andlocated at Taculing Road, Pleasantville Subdivision, B acolod City. In 1975, respondent EldredJardinico bought the rights to the lot from Robillo. At that time, Lot 9 was vacant.

Upon completing all payments, Jardinico secured from the Register of Deeds of B acolod City onDecember 19, 1978 Transfer Certificate of Title No. 106367 in his name. It was then that hediscovered that improvements had been introduced on Lot 9 by respondent Wilson Kee, who hadtaken possession thereof.

It appears that on March 26, 1974, Kee bought on installment Lot 8 of the same subdivision fromC.T. Torres Enterprises, Inc. (CTTEI), the exclusive real estate agent of petitioner. Under theContract to Sell on Installment, Kee could possess the lot even before the completion of allinstallment payments. On January 20, 1975, Kee paid CTTEI the relocation fee of P50.00 andanother P50.00 on January 27, 1975, for the preparation of the lot plan. These amounts were paid

prior to Kees taking actual possession of Lot 8. After the preparation of the lot plan and a copythereof given to Kee, CTTEI through its employee, Zenaida Octaviano, accompanied Kees wife,Donabelle Kee, to inspect Lot 8. Unfortunately, the parcel of land pointed by Octaviano was Lot9. Thereafter, Kee proceeded to construct his residence, a store, an auto repair shop and other improvements on the lot.

After discovering that Lot 9 was occupied by Kee, Jardinico confronted him. The parties tried toreach an amicable settlement, but failed.

On January 30, 1981, Jardinicos lawyer wrote Kee, demanding that the latter remove allimprovements and vacate Lot 9. When Kee refused to vacate Lot 9, Jardinico filed with theMunicipal Trial Court in Cities, B ranch 3, B acolod City (MTCC), a complaint for ejectment withdamages against Kee.

Kee, in turn, filed a third-party complaint against petitioner and CTTEI.

The MTCC held that the erroneous delivery of Lot 9 to Kee was attributable to CTTEI. It further ruled that petitioner and CTTEI could not successfully invoke as a defense the failure of Kee togive notice of his intention to begin construction required under paragraph 22 of the Contract toSell on Installment and his having built a sari-sari store without. the prior approval of petitioner required under paragraph 26 of said contract, saying that the purpose of these requirements wasmerely to regulate the type of improvements to be constructed on the lot 3 .


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H owever, the MTCC found that petitioner had already rescinded its contract with Kee over Lot 8for the latters failure to pay the installments due, and that Kee had not contested the rescission.The rescission was effected in 1979, before the complaint was instituted. The MTCC concludedthat Kee no longer had any right over the lot subject of the contract between him and petitioner.Consequently, Kee must pay reasonable rentals for the use of Lot 9, and, furthermore, he cannot

claim reimbursement for the improvements he introduced on said lot.

The MTCC thus disposed:

"IN VIEW OF ALL T H E FOREGOING, judgment is hereby rendered as follows:

1. Defendant Wilson Kee is ordered to vacate tithe premises of Lot 9, covered by TCT No.106367 and to remove all structures and improvements he introduced thereon;

2. Defendant Wilson Kee is ordered to pay to the plaintiff rentals at the rate of P 15.00 a daycomputed from the time this suit was filed on March 12, 1981 until he actually vacates the

premises. This amount shall bear interests (sic) at the rate of 12 per cent (sic) per annum.

3. Third-Party Defendant CT. Torres Enterprises, Inc. and Pleasantville Subdivision are orderedto pay the plaintiff jointly and severally the sum of P3,000.00 as attorneys fees and P700.00 ascost and litigation expenses." 4

On appeal, the Regional Trial Court, B ranch 48, B acolod City (RTC) ruled that petitioner andCTTEI were not at fault or were not negligent, there being no preponderant evidence to showthat they directly participated in the delivery of Lot 9 to Kee. 5 It found Kee a builder in badfaith. It further ruled that even assuming arguendo that Kee was acting in good faith, he was,nonetheless, guilty of unlawfully usurping the possessory right of Jardinico over Lot 9 from the

time he was served with notice to vacate said lot, and thus was liable for rental.

The RTC thus disposed:

"W H EREFORE, the decision appealed from is affirmed with respect to the order against thedefendant to vacate the premises of Lot No. 9 covered by Transfer Certificate of Title No. T-106367 of the land records of B acolod City; the removal of all structures and improvementsintroduced thereon at his expense and the payment to plaintiff (sic) the sum of Fifteen (P 15.00)Pesos a day as reasonable rental to be computed from January 30, 1981, the date of the demand,and not from the date of the filing of the complaint, until he had vacated (sic) the premises, withinterest thereon at 12% per annum. This Court further renders judgment against the defendant to

pay the plaintiff the sum of Three Thousand (P3,000.00) Pesos as attorneys fees, plus costs of litigation.

"The third-party complaint against Third-Party Defendants Pleasantville DevelopmentCorporation and C.T. Torres Enterprises, Inc. is dismissed. The order against Third-PartyDefendants to pay attorneys fees to plaintiff and costs of litigation is reversed." 6


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Following the denial of his motion for reconsideration on October 20, 1986, Kee appealeddirectly to the Supreme Court, which referred the matter to the Court of Appeals.

The appellate court ruled that Kee was a builder in good faith, as he was unaware of the "mix-up" when he began construction of the improvements on Lot 8. It further ruled that the erroneous

delivery was due to the negligence of CTTEI, and that such wrong delivery was likewiseimputable to its principal, petitioner herein. The appellate court also ruled that the award of rentals was without basis.

Thus, the Court of Appeals disposed:

"W H EREFORE, the petition is GRANTED, the appealed decision is REVERSED, and judgmentis rendered as follows:

1. Wilson Kee is declared a builder in good faith with respect to the improvements he introducedon Lot 9, and is entitled to the rights granted him under Articles 448, 546 and 548 of the New

Civil Code.

2. Third-party defendants C.T. Torres Enterprises, Inc. and Pleasantville DevelopmentCorporation are solidarily liable under the following circumstances:

a. If Eldred Jardinico decides to appropriate the improvements and, thereafter, removethese structures, the third-party defendants shall answer for all demolition expensesand the value of the improvements thus destroyed or rendered useless;

b. If Jardinico prefers that Kee buy the land, the third-party defendants shall answer for the amount representing the value of Lot 9 that Kee should pay to Jardinico.

3. Third-party defendants C.T. Torres Enterprises, Inc. and Pleasantville DevelopmentCorporation are ordered to pay in solidum the amount of P3,000.00 to Jardinico as attorneys fees,as well as litigation expenses.

4. The award of rentals to Jardinico is dispensed with.

"Furthermore, the case is REMANDED to the court of origin for the determination of the actualvalue of the improvements and the property (Lot 9), as well as for further proceedings inconformity with Article 448 of the New Civil Code." 7

Petitioner then filed the instant petition against Kee, Jardinico and CTTEI.

The I ssues

The petition submitted the following grounds to justify a review of the respondent CourtsDecision, as follows:


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"1. The Court of Appeals has decided the case in a way probably not in accord with law or thethe (sic) applicable decisions of the Supreme Court on third-party complaints, by ordering third-

party defendants to pay the demolition expenses and/or price of the land;

"2. The Court of Appeals has so far departed from the accepted course of judicial proceedings,

by granting to private respondent-Kee the rights of a builder in good faith in excess of what thelaw provides, thus enriching private respondent Kee at the expense of the petitioner;

"3. In the light of the subsequent events or circumstances which changed the rights of the parties,it becomes imperative to set aside or at least modify the judgment of the Court of Appeals toharmonize with justice and the facts;

"4. Private respondent-Kee in accordance with the findings of facts of the lower court is clearly a builder in bad faith, having violated several provisions of the contract to sell on installments;

"5. The decision of the Court of Appeals, holding the principal, Pleasantville Development

Corporation (liable) for the acts made by the agent in excess of its authority is clearly in violationof the provision of the law;

"6. The award of attorneys fees is clearly without basis and is equivalent to putting a premium in(sic) court litigation."

From these grounds, the issues could be re-stated as follows:

(1) Was Kee a builder in good faith?

(2) What is the liability, if any, of petitioner and its agent, C.T. Torres Enterprises, Inc.? and

(3) Is the award of attorneys fees proper?

The F irst I ssue: Good Fa ith

Petitioner contends that the Court of Appeals erred in reversing the RTCs ruling that Kee was a builder in bad faith.

Petitioner fails to persuade this Court to abandon the findings and conclusions of the Court of Appeals that Kee was a builder in good faith. We agree with the following observation of theCourt of Appeals:

"The roots of the controversy can be traced directly to the errors committed by CTTEI, when it pointed the wrong property to Wilson Kee and his wife. It is highly improbable that a purchaser of a lot would knowingly and willingly build his residence on a lot owned by another,deliberately exposing himself and his family to the risk of being ejected from the land and losingall improvements thereon, not to mention the social humiliation that would follow.


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"Under the circumstances, Kee had acted in the manner of a prudent man in ascertaining theidentity of his property. Lot 8 is covered by Transfer Certificate of Title No. T-69561, while Lot9 is identified in Transfer Certificate of Title No. T-106367. H ence, under the Torrens system of land registration, Kee is presumed to have knowledge of the metes and bounds of the propertywith which he is dealing. x x x

xxx xxx xxx

"B ut as Kee is a layman not versed in the technical description of his property, he had to find away to ascertain that what was described in TCT No. 69561 matched Lot 8. Thus, he went to thesubdivision developers agent and applied and paid for the relocation of the lot, as well as for the

production of a lot plan by CTTEIs geodetic engineer. Upon Kees receipt of the map, his wifewent to the subdivision site accompanied by CTTEIs employee, Octaviano, who authoritativelydeclared that the land she was pointing to was indeed Lot 8. H aving full faith and confidence inthe reputation of CTTEI, and because of the companys positive identification of the property,Kee saw no reason to suspect that there had been a misdelivery. The steps Kee had taken to

protect his interests were reasonable. There was no need for him to have acted ex-ab und antiaca utel a, such as being present during the geodetic engineers relocation survey or hiring anindependent geodetic engineer to countercheck for errors, for the final delivery of subdivisionlots to their owners is part of the regular course of everyday business of CTTEI. B ecause of CTTEIs blunder, what Kee had hoped to forestall did in fact transpire. Kees efforts all went tonaught." 8

Good faith consists in the belief of the builder that the land he is building on is his and hisignorance of any defect or flaw in his title. 9 And as good faith is presumed, petitioner has the

burden of proving bad faith on the part of Kee. 10

At the time he built improvements on Lot 8, Kee believed that said lot was what he bought from petitioner. H e was not aware that the lot delivered to him was not Lot 8. Thus, Kees good faith.Petitioner failed to prove otherwise.

To demonstrate Kees bad faith, petitioner points to Kees violation of paragraphs 22 and 26 of theContract of Sale on Installment.

We disagree. Such violations have no bearing whatsoever on whether Kee was a builder in goodfaith, that is, on his state of mind at the time he built the improvements on Lot 9. These allegedviolations may give rise to petitioners cause of action against Kee under the said contract(contractual breach), but may not be bases to negate the presumption that Kee was a builder ingood faith.

Petitioner also points out that, as found by the trial court, the Contract of Sale on Installmentcovering Lot 8 between it and Kee was rescinded long before the present action was instituted.This has no relevance on the liability of petitioner, as such fact does not negate the negligence of its agent in pointing out the wrong lot to Kee. Such circumstance is relevant only as it givesJardinico a cause of action for unlawful detainer against Kee.


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Petitioner next contends that Kee cannot "claim that another lot was erroneously pointed out tohim" because the latter agreed to the following provision in the Contract of Sale on Installment,to wit:

"13. The Vendee hereby declares that prior to the execution of his contract he/she has personally

examined or inspected the property made subject-matter hereof, as to its location, contours, aswell as the natural condition of the lots and from the date hereof whatever consequential changetherein made due to erosion, the said Vendee shall bear the expenses of the necessary fillings,when the same is so desired by him/her." 11

The subject matter of this provision of the contract is the change of the location, contour andcondition of the lot due to erosion. It merely provides that the vendee, having examined the

property prior to the execution of the contract, agrees to shoulder the expenses resulting fromsuch change.

We do not agree with the interpretation of petitioner that Kee contracted away his right to

recover damages resulting from petitioners negligence. Such waiver would be contrary to public policy and cannot be allowed. "Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a rightrecognized by law." 12

The S econd I ssue: Petitioners Liab ility

Kee filed a third-party complaint against petitioner and CTTEI, which was dismissed by the RTCafter ruling that there was no evidence from which fault or negligence on the part of petitioner and CTTEI can be inferred. The Court of Appeals disagreed and found CTTEI negligent for theerroneous delivery of the lot by Octaviano, its employee.

Petitioner does not dispute the fact that CTTEI was its agent. B ut it contends that the erroneousdelivery of Lot 9 to Kee was an act which was clearly outside the scope of its authority, andconsequently, CTTEI alone should be liable. It asserts that "while [CTTEI] was authorized to sellthe lot belonging to the herein petitioner, it was never authorized to deliver the wrong lot toKee." 13

Petitioners contention is without merit.

The rule is that the principal is responsible for the acts of the agent, done within the scope of hisauthority, and should bear the damage caused to third persons. 14 On the other hand, the agent

who exceeds his authority is personally liable for the damage. 15

CTTEI was acting within its authority as the sole real estate representative of petitioner when itmade the delivery to Kee. In acting within its scope of authority, it was, however, negligent. It isthis negligence that is the basis of petitioners liability, as principal of CTTEI, per Articles 1909and 1910 of the Civil Code.


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Pending resolution of the case before the Court of Appeals, Jardinico and Kee on July 24, 1987entered into a deed of sale, wherein the former sold Lot 9 to Kee. Jardinico and Kee did notinform the Court of Appeals of such deal.

The deed of sale contained the following provision:

"1. That Civil Case No. 3815 entitled "Jardinico vs. Kee" which is now pending appeal with theCourt of Appeals, regardless of the outcome of the decision shall be mutually disregarded andshall not be pursued by the parties herein and shall be considered dismissed and without effectwhatsoever; 16

Kee asserts though that the "terms and conditions in said deed of sale are strictly for the partiesthereto" and that "(t)here is no waiver made by either of the parties in said deed of whatever favorable judgment or award the honorable respondent Court of Appeals may make in their favor against herein petitioner Pleasantville Development Corporation and/or private respondent C.T.Torres Enterprises, Inc." 17

Obviously, the deed of sale can have no effect on the liability of petitioner. As we have earlier stated, petitioners liability is grounded on the negligence of its agent. On the other hand, what thedeed of sale regulates are the reciprocal rights of Kee and Jardinico; it stressed that they hadreached an agreement independent of the outcome of the case.

Petitioner further assails the following holding of the Court of Appeals:

"2. Third-party defendants C.T. Torres Enterprises, Inc. and Pleasantville DevelopmentCorporation are solidarily liable under the following circumstances:

"a. If Eldred Jardinico decides to appropriate the improvements and, thereafter, removethese structures, the third-party defendants shall answer for all demolition expensesand the value of the improvements thus destroyed or rendered useless;

"b. If Jardinico prefers that Kee buy the land, the third-party defendants shall answer for the amount representing the value of Lot 9 that Kee should pay to Jardinico." 18

Petitioner contends that if the above holding would be carried out, Kee would be unjustlyenriched at its expense. In other words, Kee would be -able to own the lot, as buyer, withouthaving to pay anything on it, because the aforequoted portion of respondent Courts Decisionwould require petitioner and CTTEI jointly and solidarily to "answer" or reimburse Kee there

for.We agree with petitioner.

Petitioners liability lies in the negligence of its agent CTTEI. For such negligence, the petitioner should be held liable for damages. Now, the extent and/or amount of damages to be awarded is afactual issue which should be determined after evidence is adduced. H owever, there is no


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showing that such evidence was actually presented in the trial court; hence no damages couldnow be awarded.

The rights of Kee and Jardinico vis-a -vis each other, as builder in good faith and owner in goodfaith, respectively, are regulated by law ( i.e. , Arts. 448, 546 and 548 of the Civil Code). It was

error for the Court of Appeals to make a "slight modification" in the application of such law, onthe ground of "equity". At any rate, as it stands now, Kee and Jardinico have amicably settledthrough their deed of sale their rights and obligations with regards to Lot 9. Thus, we deleteitems 2 (a) and (b) of the dispositive portion of the Court of Appeals Decision [as reproducedabove] holding petitioner and CTTEI solidarily liable.

The Third I ssue: Attorneys F ees

The MTCC awarded Jardinico attorneys fees and costs in the amount of P3,000.00 and P700.00,respectively, as prayed for in his complaint. The RTC deleted the award, consistent with itsruling that petitioner was without fault or negligence. The Court of Appeals, however, reinstated

the award of attorneys fees after ruling that petitioner was liable for its agents negligence.

The award of attorneys fees lies within the discretion of the court and depends upon thecircumstances of each case. 19 We shall not interfere with the discretion of the Court of Appeals.Jardinico was compelled to litigate for the protection of his interests and for the recovery of damages sustained as a result of the negligence of petitioners agent. 20

In sum, we rule that Kee is a builder in good faith. The disposition of the Court of Appeals thatKee "is entitled to the rights granted him under Articles 448, 546 and 548 of the New CivilCode" is deleted, in view of the deed of sale entered into by Kee and Jardinico, which deed nowgoverns the rights of Jardinico and Kee as to each other. There is also no further need, as ruled

by the appellate Court, to remand the case to the court of origin "for determination of the actualvalue of the improvements and the property (Lot 9), as well as for further proceedings inconformity with Article 448 of the New Civil C ode."

WHEREFORE , the petition is partially GRANTED. The Decision of the Court of Appeals ishereby MODIFIED as follows:

(1) Wilson Kee is declared a builder in good faith;

(2) Petitioner Pleasantville Development Corporation and respondent C.T. TonesEnterprises, Inc. are declared solidarily liable for damages due to negligence; however,

since the amount and/or extent of such damages was not proven during the trial, thesame cannot now be quantified and awarded;

(3) Petitioner Pleasantville Develpment Corporation and respondent C.T. Torres Enterprises,Inc. are ordered to pay in solidum the amount of P3,000.00 to Jardinico as attorneysfees, as well as litigation expenses; and

(4) The award of rentals to Jardinico is dispensed with.


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SO ORDERED .

Narvasa, C.J. (Chairman), Davide, Jr., and Melo, JJ. , concur.

Francisco, J. , took no part . Member of the division in the CA which rendered the assailed

decision .

E ndnotes:

--

SUPREME COURT Manila

EN B ANC

G.R. No. L-2075 November 29, 1949

MARGARITA AFIALDA, plaintiff-appellant,vs.BASILIO HISOLE and FRANCISCO HISOLE, defendants-appellees.

N icol a s P. N onato f or a ppell ant. Gell ad a, M ir a sol and Ravena f or a ppellees.

REYES, J. :

This is an action for damages arising from injury caused by an animal. The complaint allegesthat the now deceased, Loreto Afialda, was employed by the defendant spouses as caretaker of their carabaos at a fixed compensation; that while tending the animals he was, on March 21,1947, gored by one of them and later died as a consequence of his injuries; that the mishap wasdue neither to his own fault nor to f or ce maj eure ; and that plaintiff is his elder sister and heir depending upon him for support.

B efore filing their answer, defendants moved for the dismissal of the complaint for lack of acause of action, and the motion having been granted by the lower court, plaintiff has taken thisappeal.

Plaintiff seeks to hold defendants liable under article 1905 of the Civil Code, which reads:

The possessor of an animal, or the one who uses the same, is liable for any damages itmay cause, even if such animal should escape from him or stray away.

This liability shall cease only in case, the damage should arise from f or ce maj eure or from the fault of the person who may have suffered it.


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The question presented is whether the owner of the animal is liable when damage is caused to itscaretaker.

The lower court took the view that under the above-quoted provision of the Civil Code, theowner of an animal is answerable only for damages caused to a stranger, and that for damage

caused to the caretaker of the animal the owner would be liable only if he had been negligent or at fault under article 1902 of the same code. Claiming that the lower court was in error, counselfor plaintiff contends that the article 1905 does not distinguish between damage caused to thecaretaker and makes the owner liable whether or not he has been negligent or at fault. For authority counsel cites the following opinion which Manresa quotes from a decision of theSpanish Supreme Court:

El articulo 1905 del codigo Civil no consienta otra interpretacion que la que, clara yevidentemente, se deriva de sus terminos literales, bastando, segun el mismo, que unanimal cause perjuicio para que nasca la responsibilidad del dueno, aun no imputandose aeste ninguna clase de culpa o negligencia, habida,sin duda, cuenta por el lgislador de que

tal concepto de dueno es suficiente para que arrastre las consecuencias favorables oadversas de esta clase de propiedad, salvo la exception en el mismo contenida. (12Manresa, Commentaries on the Spanish CivilCode, 573.)

This opinion, however, appears to have been rendered in a case where an animal caused injury toa stranger or third person. It is therefore no authority for a case like the present where the personinjured was the caretaker of the animal. The distinction is important. For the statute names the possessor or user of the animal as the person liable for "any damages it may cause," and this for the obvious reason that the possessor or user has the custody and control of the animal and istherefore the one in a position to prevent it from causing damage.

In the present case, the animal was in custody and under the control of the caretaker, who was paid for his work as such. Obviously, it was the caretaker's business to try to prevent the animalfrom causing injury or damage to anyone, including himself. And being injured by the animalunder those circumstances, was one of the risks of the occupation which he had voluntarilyassumed and for which he must take the consequences.

In a decision of the Spanish Supreme Court, cited by Manresa in his Commentaries (Vol. 12, p.578), the death of an employee who was bitten by a feline which his master had asked him totake to his establishment was by said tribunal declared to be "a veritable accident of labor" whichshould come under the labor laws rather than under article 1905 of the Civil Code. The presentaction, however, is not brought under the Workmen's Compensation Act, there being noallegation that, among other things, defendant's business, whatever that might be, had a grossincome of P20,000. As already stated, defendant's liability is made to rest on article 1905 of theCivil Code. but action under that article is not tenable for the reasons already stated. On the other hand, if action is to be based on article 1902 of the Civil Code, it is essential that there be fault or negligence on the part of the defendants as owners of the animal that caused the damage. B ut thecomplaint contains no allegation on those points.


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There being no reversible error in the order appealed from, the same is hereby affirmed, butwithout costs in view of the financial situation of the appellant.

M or an , C .J. , Oza et a, P ar a s , Beng zon , P adill a, Tua son , M ontem a yor and Torres , JJ. , concur.

[G.R. No. 113003. October 17, 1997]

AL B ERTA YO B IDO and CRESENCIO YO B IDO, petitioners , vs. COURT OF APPEALS,LENY TUM B OY, ARDEE TUM B OY and JASMIN TUM B OY, respondents .

D E C I S I O N

ROMERO, J .:

In this petition for review on certior ari of the decision of the Court of Appeals, the issue iswhether or not the explosion of a newly installed tire of a passenger vehicle is a fortuitous event

that exempts the carrier from liability for the death of a passenger.

On April 26, 1988, spouses Tito and Leny Tumboy and their minor children named Ardee andJasmin, boarded at Mangagoy, Surigao del Sur, a Yobido Liner bus bound for Davao City. AlongPicop Road in Km. 17, Sta. Maria, Agusan del Sur, the left front tire of the bus exploded. The

bus fell into a ravine around three (3) feet from the road and struck a tree. The incident resultedin the death of 28-year-old Tito Tumboy and physical injuries to other passengers.

On November 21, 1988, a complaint for breach of contract of carriage, damages and attorneysfees was filed by Leny and her children against Alberta Yobido, the owner of the bus, andCresencio Yobido, its driver, before the Regional Trial Court of Davao City. When the

defendants therein filed their answer to the complaint, they raised the affirmative defense of ca so f ortuito. They also filed a third-party complaint against Philippine Phoenix Surety andInsurance, Inc. This third-party defendant filed an answer with compulsory counterclaim. At the

pre-trial conference, the parties agreed to a stipulation of facts.

Upon a finding that the third party defendant was not liable under the insurance contract, thelower court dismissed the third party complaint. No amicable settlement having been arrived at

by the parties, trial on the merits ensued.

The plaintiffs asserted that violation of the contract of carriage between them and the defendantswas brought about by the drivers failure to exercise the diligence required of the carrier in

transporting passengers safely to their place of destination. According to Leny Tumboy, the busleft Mangagoy at 3:00 oclock in the afternoon. The winding road it traversed was not cementedand was wet due to the rain; it was rough with crushed rocks. The bus which was full of

passengers had cargoes on top. Since it was running fast, she cautioned the driver to slowdown but he merely stared at her through the mirror. At around 3:30 p.m., in Trento, she heardsomething explode and immediately, the bus fell into a ravine.


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For their part, the defendants tried to establish that the accident was due to a fortuitous event.Abundio Salce, who was the bus conductor when the incident happened, testified that the 42-seater bus was not full as there were only 32 passengers, such that he himself managed to get aseat. H e added that the bus was running at a speed of 60 to 50 and that it was going slow

because of the zigzag road. H e affirmed that the left front tire that exploded was a brand new

tire that he mounted on the bus on April 21, 1988 or only five (5) days before the incident. TheYobido Liner secretary, Minerva Fernando, bought the new Goodyear tire from Davao ToyoParts on April 20, 1988 and she was present when it was mounted on the bus by Salce. She statedthat all driver applicants in Yobido Liner underwent actual driving tests before they wereemployed. Defendant Cresencio Yobido underwent such test and submitted his professionaldrivers license and clearances from the barangay, the fiscal and the police.

On August 29, 1991, the lower court rendered a decision dismissing the action for lack of merit.On the issue of whether or not the tire blowout was a ca so f ortuito , it found that the falling of the bus to the cliff was a result of no other outside factor than the tire blow-out. It held that theruling in the La Ma llor ca a nd P ampang a B us C o. v. De Jesus that a tire blowout is a

mechanical defect of the conveyance or a fault in its equipment which was easily discoverable if the bus had been subjected to a more thorough or rigid check-up before it took to the road thatmorning is inapplicable to this case. It reasoned out that in said case, it was found that the

blowout was caused by the established fact that the inner tube of the left front tire was pressed between the inner circle of the left wheel and the rim which had slipped out of the wheel. In thiscase, however, the cause of the explosion remains a mystery until at present. As such, the courtadded, the tire blowout was a ca so f ortuito which is completely an extraordinary circumstanceindependent of the will of the defendants who should be relieved of whatever liability the

plaintiffs may have suffered by reason of the explosion pursuant to Article 1174 of the CivilCode.

Dissatisfied, the plaintiffs appealed to the Court of Appeals. They ascribed to the lower court thefollowing errors: (a) finding that the tire blowout was a ca so f ortuito ; (b) failing to hold that thedefendants did not exercise utmost and/or extraordinary diligence required of carriers under Article 1755 of the Civil Code, and (c) deciding the case contrary to the ruling in Juntill a v.

F ont anar , and N ecesito v. P a r a s.

On August 23, 1993, the Court of Appeals rendered the Decision reversing that of the lower court. It held that:

To Our mind, the explosion of the tire is not in itself a fortuitous event. The cause of the blow-out, if due to a factory defect, improper mounting, excessive tire pressure, is not an unavoidableevent. On the other hand, there may have been adverse conditions on the road that wereunforeseeable and/or inevitable, which could make the blow-out a caso fortuito. The fact that thecause of the blow-out was not known does not relieve the carrier of liability. Owing to thestatutory presumption of negligence against the carrier and its obligation to exercise the utmostdiligence of very cautious persons to carry the passenger safely as far as human care andforesight can provide, it is the burden of the defendants to prove that the cause of the blow-outwas a fortuitous event. It is not incumbent upon the plaintiff to prove that the cause of the blow-out is not caso-fortuito.


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Proving that the tire that exploded is a new Goodyear tire is not sufficient to dischargedefendants burden. As enunciated in Necesito vs. Paras, the passenger has neither choice nor control over the carrier in the selection and use of its equipment, and the good repute of themanufacturer will not necessarily relieve the carrier from liability.

Moreover, there is evidence that the bus was moving fast, and the road was wet and rough. Thedriver could have explained that the blow-out that precipitated the accident that caused the deathof Toto Tumboy could not have been prevented even if he had exercised due care to avoid thesame, but he was not presented as witness.

The Court of Appeals thus disposed of the appeal as follows:

W H EREFORE, the judgment of the court a quo is set aside and another one entered orderingdefendants to pay plaintiffs the sum of P50,000.00 for the death of Tito Tumboy, P30,000.00 inmoral damages, and P7,000.00 for funeral and burial expenses.

SO ORDERED.

The defendants filed a motion for reconsideration of said decision which was denied on November 4, 1993 by the Court of Appeals. H ence, the instant petition asserting the positionthat the tire blowout that caused the death of Tito Tumboy was a ca so f ortuito. Petitioners claimfurther that the Court of Appeals, in ruling contrary to that of the lower court, misapprehendedfacts and, therefore, its findings of fact cannot be considered final which shall bind this Court.H ence, they pray that this Court review the facts of the case.

The Court did re-examine the facts and evidence in this case because of the inapplicability of theestablished principle that the factual findings of the Court of Appeals are final and may not be

reviewed on appeal by this Court. This general principle is subject to exceptions such as the one present in this case, namely, that the lower court and the Court of Appeals arrived at diversefactual findings. H owever, upon such re-examination, we found no reason to overturn thefindings and conclusions of the Court of Appeals.

As a rule, when a passenger boards a common carrier, he takes the risks incidental to the mode of travel he has taken. After all, a carrier is not an insurer of the safety of its passengers and is not

bound absolutely and at all events to carry them safely and without injury. H owever, when a passenger is injured or dies while travelling, the law presumes that the common carrier isnegligent. Thus, the Civil Code provides:

Art. 1756. In case of death or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinarydiligence as prescribed in articles 1733 and 1755.

Article 1755 provides that (a) common carrier is bound to carry the passengers safely as far ashuman care and foresight can provide, using the utmost diligence of very cautious persons, witha due regard for all the circumstances. Accordingly, in culpa c ontr ac tua l , once a passenger diesor is injured, the carrier is presumed to have been at fault or to have acted negligently. This


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disputable presumption may only be overcome by evidence that the carrier had observedextraordinary diligence as prescribed by Articles 1733, 1755 and 1756 of the Civil Code or thatthe death or injury of the passenger was due to a fortuitous event. Consequently, the court neednot make an express finding of fault or negligence on the part of the carrier to hold it responsiblefor damages sought by the passenger.

In view of the foregoing, petitioners contention that they should be exempt from liability because the tire blowout was no more than a fortuitous event that could not have been foreseen,must fail. A fortuitous event is possessed of the following characteristics: (a) the cause of theunforeseen and unexpected occurrence, or the failure of the debtor to comply with hisobligations, must be independent of human will; (b) it must be impossible to foresee the eventwhich constitutes the ca so f ortuito , or if it can be foreseen, it must be impossible to avoid; (c) theoccurrence must be such as to render it impossible for the debtor to fulfill his obligation in anormal manner; and (d) the obligor must be free from any participation in the aggravation of theinjury resulting to the creditor. As Article 1174 provides, no person shall be responsible for afortuitous event which could not be foreseen, or which, though foreseen, was inevitable. In other

words, there must be an entire exclusion of human agency from the cause of injury or loss.

Under the circumstances of this case, the explosion of the new tire may not be considered afortuitous event. There are human factors involved in the situation. The fact that the tire wasnew did not imply that it was entirely free from manufacturing defects or that it was properlymounted on the vehicle. Neither may the fact that the tire bought and used in the vehicle is of a

brand name noted for quality, resulting in the conclusion that it could not explode within fivedays use. B e that as it may, it is settled that an accident caused either by defects in theautomobile or through the negligence of its driver is not a ca so f ortuito that would exempt thecarrier from liability for damages.

Moreover, a common carrier may not be absolved from liability in case of f or ce maj eure or fortuitous event alone. The common carrier must still prove that it was not negligent in causingthe death or injury resulting from an accident. This Court has had occasion to state:

While it may be true that the tire that blew-up was still good because the grooves of the tirewere still visible, this fact alone does not make the explosion of the tire a fortuitous event. Noevidence was presented to show that the accident was due to adverse road conditions or that

precautions were taken by the jeepney driver to compensate for any conditions liable to causeaccidents. The sudden blowing-up, therefore, could have been caused by too much air pressureinjected into the tire coupled by the fact that the jeepney was overloaded and speeding at the timeof the accident.

It is interesting to note that petitioners proved through the bus conductor, Salce, that the bus wasrunning at 60-50 kilometers per hour only or within the prescribed lawful speed limit.H owever, they failed to rebut the testimony of Leny Tumboy that the bus was running so fast

that she cautioned the driver to slow down. These contradictory facts must, therefore, beresolved in favor of liability in view of the presumption of negligence of the carrier in the law.Coupled with this is the established condition of the road rough, winding and wet due to therain. It was incumbent upon the defense to establish that it took precautionary measures


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considering partially dangerous condition of the road. As stated above, proof that the tire wasnew and of good quality is not sufficient proof that it was not negligent. Petitioners should haveshown that it undertook extraordinary diligence in the care of its carrier, such as conducting dailyroutinary check-ups of the vehicles parts. As the late Justice J. B .L. Reyes said:

It may be impracticable, as appellee argues, to require of carriers to test the strength of each andevery part of its vehicles before each trip; but we are of the opinion that a due regard for thecarriers obligations toward the traveling public demands adequate periodical tests to determinethe condition and strength of those vehicle portions the failure of which may endanger the safetyof the passengers.

H aving failed to discharge its duty to overthrow the presumption of negligence with clear andconvincing evidence, petitioners are hereby held liable for damages. Article 1764 in relation toArticle 2206 of the Civil Code prescribes the amount of at least three thousand pesos as damagesfor the death of a passenger. U

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