THIRD DIVISION
|
NGO SIN SING and TICIA DY
NGO, Petitioners, - versus - LI SENG GIAP & Respondents. |
G.R. No. 170596
Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ. Promulgated: November
28, 2008 |
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DECISION
NACHURA, J.:
This
is a petition for review on certiorari
of the Decision[1] of the
Court of Appeals (CA) dated
The facts are as follows:
Petitioner
spouses Ngo Sin Sing and Ticia Dy Ngo owned a lot at
In 1981, the respondent was
constrained to consult engineers, E.S. de Castro Ph.D. and Associates, through
Control Builders Corporation, to investigate the cause of the damages in the P8,021,687.00.[4] The respondents demanded that the petitioners
rebuild the
Thus, a
complaint for sum of money was filed against Ngo Sin Sing, Ticia Dy Ngo and
Contech Construction Technology Development Corporation with the Regional Trial
Court of Manila, docketed as Civil Case No. 83-19367, praying that the
petitioners and Contech be ordered to, jointly and severally, pay the following
sums:
1)
P8,021,687.00,
representing the actual cost of demolition and reconstruction of the
2)
P154,800.00
which plaintiff contracted to pay the E.S. de Castro, Ph.D. and Associates, and
Control Builders Corporation to determine the extent of the damages and the
structural integrity of the LSG Building;
3)
P543,672.00,
representing the income that the plaintiff will lose from the rentals during
the reconstruction of the building;
4)
P10,000.00 as
attorney’s fees.[5]
In their
Answer,[6] spouses
Ngo Sin Sing and Ticia Dy Ngo moved to dismiss the complaint alleging that: (1)
the respondent’s building had been structurally unstable and deficient since
incipiency, having been constructed in 1966 without the appropriate provision
to vouchsafe its structural integrity including differential settlements during
its economic life; and (2) the structural defects and failure were traceable
not necessarily due to soil erosion but to a number of external forces
constantly working upon the building including earthquakes and improper
maintenance. Petitioners filed a cross-claim against Contech averring that
pursuant to their construction contract, all claims of third parties should be
answered by said corporation.[7]
For its
part, Contech alleged that the excavation did not reach the common boundary and
was eight (8) inches, more or less, away from the common boundary. Adequate and necessary precautions were
undertaken which included the putting of wood sheet piles along the boundaries
to prevent soil erosion and all phases of work were done according to the
approved plan. Assuming it was liable on the cross-claim, such liability was
deemed waived or abandoned for failure of Ngo Sin Sing to notify Contech of
such claim.[8]
After
due hearing, the trial court ruled that the defendants were negligent. It found that the excavation made on
defendant’s lot was near the common boundary, and that soil erosion would not
have taken place if wood sheet piles were properly put in place along the
common boundary. However, the trial court also stated that the plaintiff was
likewise not without fault. The trial court noted that the
Thus,
the trial court rendered judgment as follows:
WHEREFORE,
premises considered, judgment is hereby rendered ordering defendants Ngo Sin Sing, Ticia Dy
Ngo and [Contech] Construction Technology Development Corp. jointly and
severally, liable to pay plaintiff Li Seng Giap & Sons, Inc. the sum of P4,010,843.50. The claim for other damages cannot be awarded
for lack of sufficient basis. Defendant
Contech Technology & Development Corp. shall reimburse defendants Spouses
Ngo Sin Sing & Ticia Dy Ngo for whatever amount the latter will pay to
plaintiff. The counterclaims of
defendants are DISMISSED.[9]
Dissatisfied with the trial court’s
ruling, Li Seng Giap & Sons, Inc.
and the spouses Ngo Sin Sing and Ticia Dy Ngo filed their respective
appeals. Contech no longer appealed.
The respondent disagreed with the
trial court’s finding that it was guilty of contributory negligence and that it
must share in the cost of the reconstruction of the
The petitioners, on the other hand,
averred that there was no basis for holding them jointly and severally liable
with Contech for the payment of the amount of damages to the respondent. The trial court correctly pointed out that as
owner of the property, it was their right to construct on their land and have
it excavated. More importantly, they had
a contract with Contech wherein it was provided that all claims of third persons
would be answered by the company.
On May
11, 2005, the CA affirmed the trial court’s decision with modification. The appellate court ruled that the respondent
had a proven cause of action against the petitioners; that respondent’s right to
property was invaded or disturbed when excavation was done without sufficient
lateral or subjacent support. As such,
the petitioners’ liability as project owner should be shared with the
contractor, applying the provisions of Article 2194 of the Civil Code which
states that “the responsibility of two or more persons for a quasi-delict is
solidary.”[10] The CA refuted the findings of the trial
court imputing contributory negligence to the respondents Li Seng Giap &
Sons, Inc., and ruled that the spouses Ngo Sin Sing and Ticia Dy Ngo together
with Contech, were solidarily liable for the whole amount. Thus:
IN
VIEW OF THE FOREGOING, the decision appealed from is MODIFIED in that the
defendants shall jointly and severally pay the plaintiff the sum of P8,021,687.[00]
with interest at 6 percent per annum from the date of the filing of the
complaint until paid, plus ten percent of the principal award as attorney’s
fees and costs. The rest of the
decision is AFFIRMED.
Aggrieved, the spouses Ngo Sin Sing
and Ticia Dy Ngo now come to this Court raising
the following assignment of errors:
I.
RESPONDENT COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN RENDERING THE ASSAILED DECISION AND RESOLUTION WHICH IGNORED AND DISREGARDED CLEAR EVIDENCE ON RECORD THAT RESPONDENT LSG’S OWN NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE DAMAGE TO ITS BUILDING, OR AT LEAST, AMOUNTED TO CONTRIBUTORY NEGLIGENCE WARRANTING REDUCTION OF THE AWARD.
II.
RESPONDENT COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN RENDERING THE ASSAILED DECISION AND RESOLUTION WHEN DESPITE THE FACT THAT NO ACT OR OMISSION CONSTITUTING NEGLIGENCE HAD BEEN SUCCESSFULLY IMPUTED AGAINST PETITIONERS, IT HELD PETITIONERS JOINTLY AND SEVERALLY LIABLE WITH RESPONDENT CONTECH FOR RECONSTRUCTION COSTS.
III.
RESPONDENT COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN RENDERING THE ASSAILED DECISION AND RESOLUTION WHEN, WITHOUT ANY LEGAL AND FACTUAL BASIS, IT ORDERED PETITIONER TO PAY RESPONDENT LSG ATTORNEY’S FEES IN THE AMOUNT OF TEN (10%) [PERCENT] OF THE PRINCIPAL AMOUNT.[11]
We resolve to grant the petition.
In petitions for review, the Court
does not normally review the factual findings of the courts below, but when the
findings of the CA differ from those of the trial court, the Court will not
hesitate to scrutinize the evidence on record. As between these two courts, it
cannot be denied that the trial court is in a better position to ascertain the
facts of the case considering its peculiar opportunity to be in direct contact
with the witnesses and the evidence presented.
As such, this Court is inclined to uphold the findings of the trial
court in this case which we find to be more conformable to the evidence on
record.
The records reveal that the
WITNESS:
May I recall sometime in 1940, the property was purchased with an existing building apartment wooden in 1940. Sometime in 1956, the wooden apartment was destroyed by fire. So in 1956, a permit was requested and granted to construct a three storey reinforce concrete building. Now on the later part of 1956 it was amended. The permit was amended. It was changed to a two storey concrete building. It is called semi-concrete. So the building was finished in 1957. Then in 1966 that semi-concrete building was burned. So we requested for a building permit to reconstruct and include a 3rd and 4th storey building.
COURT:
Q So the 3rd and 4th storey will be built on the skeleton?
A According to my brother that is exactly the …
Q Skeleton on the ground floor and second floor and what was added was the 3rd and 4th floor? Storey?
A Yes, sir.
Q And it was finished when?
A It was finished in 1968.
Q And it was semi-concrete?
A No reinforce concrete in 1968.
Q So the 3rd and 4th
storey was added to the shell of the ground and 2nd floor which was
burned?
A Yes, your honor.[16]
Whether or not the building is a new
edifice or built on the old ashes is really of no moment. Verily, the
foundation of the
In terms of purely engineering considerations, it would be best to demolish the existing building and then rebuild using present data as design guides. Economic feasibility is, of course, beyond the scope of this study.
If
the owners wish to salvage whatever they can of the present building, it is
suggested that the 3rd and 4th floors be removed and
retain use of the ground and second floors only. To leave the building in its present condition
would be unsafe.[19]
This only goes to show that the
additional two floors put up on the
Contributory negligence
is conduct on the part of the injured party, contributing as a legal cause to
the harm he has suffered, which falls below the standard to which he is
required to conform for his own protection.[21]
In this case, considering that respondent’s negligence must have necessarily
contributed to the sagging of the
After
going over the records of the case, the Court believes and so holds that
plaintiff is equally negligent in not providing the necessary foundation and
reinforcement to accommodate/support the additional floors and this finding is
supported by plaintiff’s evidence more particularly the declaration of John Lee
that the 3rd and 4th floors were built on the skeleton of
the ground and 2nd floor which was burned (tsn pp. 8-9, July 9,
1985). To be adding additional floors to the original 2-storey of plaintiff’s
building and depending merely on the skeleton of the ground and second floors
for its third and fourth floors without touching or reinforcing that building’s
bottom line or foundation are already manifestive of some negligence or
ignorance on the part of said building owner (plaintiff). To put all the blame and responsibility for
the defects, cracks and tilting or sagging of the building in question on the
shoulders of the defendants is not proper.
Plaintiff must realize his share of the faults and defects of his
property in the situation.[22]
x x x x
In
view of this and considering that the plaintiff’s building is still occupied by
tenants and has not been condemned nor condemnation proceedings accordingly
instituted, the Court believes that demands of substantial justice are
satisfied by allocating the damages on 50-50 ratio. Thus, 50% of the damages sustained by the
building is to be borne by the plaintiff and the other 50% by the defendants
jointly and severally upon reconstruction of the former’s building. The amount of P154,000.00 for the
services rendered by Contech (sic) Builders should be shouldered by the
plaintiff alone. Defendant Contech shall
reimburse defendants Spouses Ngo Sin Sing and Ticia Dy Ngo for whatever amount
the latter will pay to the plaintiff.[23]
The lower courts also found that
there was insufficient lateral or subjacent support provided on the adjoining
lot when excavation was done on petitioners’ land. While there were wood sheet piles placed
along the sides of the excavation, they were not properly braced to prevent a
failure wedge.[24] Such failure can only be accounted to the
contractor, which is no other than Contech.
In the Proposal[25] submitted
to the petitioners, Contech committed to undertake the construction of the
Clearly, defendant Contech failed to observe his procedure of providing lateral and subjacent support prior to excavation. Under the doctrine of “supervening negligence” which states that where both parties are negligent but the negligence of one is appreciably later in time than of the other, or when it is impossible to determine whose fault or negligence should be attributed to the incident, the one who had the last clear opportunity to avoid the impending harm and failed to do so is chargeable with the consequences thereof. Stated differently, the rule would also mean that an antecedent negligence of a person does not preclude the recovery of damages for the supervening negligence of or bar a defense against the liability sought by another, if the latter, who had the last fair chance, could have avoided the impending harm by the exercise of due diligence.
In the case at bench, the negligence of Contech caused the damages sustained by the building, which did not discharge its duty of excavating eight (8) inches away from the boundary line from the lot of plaintiff with insufficient lateral and subjacent support.[27]
Article 2176 of the New Civil Code
provides:
Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.
The requisites of quasi-delict are
the following:
(a) There must be an act or omission;
(b) Such act or omission causes damage to another;
(c) Such act or omission is caused by fault or negligence; and
(d) There is no pre-existing contractual relation between the parties.[28]
These requisites are attendant in the
instant case. The tortious act was the
excavation done without observing the proper safeguards. Although the trial court stated that
petitioner as land owner had every right to excavate on his own land, such
right is not absolute as to deprive the adjacent owner sufficient lateral support pursuant to
Article 684, New Civil Code, which states that:
No proprietor shall make such excavation upon his land as to deprive any adjacent land or building of sufficient lateral or subjacent support.
For the damage caused to the
respondent, petitioners and Contech are jointly liable as they are joint tort-feasors. Conformably with Article 2194, the
responsibility of two or more persons who are liable for the quasi-delict is
solidary.[29] In Lafarge
Cement Philippines, Inc. v. Continental Cement Corporation,[30]
the Court had the occasion to explain:
[O]bligations arising from tort are, by their nature, always solidary. We have assiduously maintained this legal principle as early as 1912 in Worcester v. Ocampo, in which we held:
x x x The difficulty in the contention of the appellants is that they fail to recognize that the basis of the present action is tort. They fail to recognize the universal doctrine that each joint tort feasor is not only individually liable for the tort in which he participates, but is also jointly liable with his tort feasors. x x x
It may be stated as a general rule that joint tort feasors are all the persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit. They are each liable as principals, to the same extent and in the same manner as if they had performed the wrongful act themselves. x x x
Joint tort feasors are jointly and severally liable for the tort which they commit. The persons injured may sue all of them or any number less than all. Each is liable for the whole damages caused by all, and all together are jointly liable for the whole damage. It is no defense for one sued alone, that the others who participated in the wrongful act are not joined with him as defendants; nor is it any excuse for him that his participation in the tort was insignificant as compared to that of the others. x x x
Joint tort feasors are not liable pro rata. The damages can not be apportioned among them, except among themselves. They cannot insist upon an apportionment, for the purpose of each paying an aliquot part. They are jointly and severally liable for the whole amount. x x x
A payment in full for the damage done, by one of the joint tort feasors, of course satisfies any claim which might exist against the others. There can be but satisfaction. The release of one of the joint tort feasors by agreement generally operates to discharge all. x x x
Of course, the court during trial may find that some of the alleged tort feasors are liable and that others are not liable. The courts may release some for lack of evidence while condemning others of the alleged tort feasors. And this is true even though they are charged jointly and severally.[31]
Prescinding from the above, there is
basis to re-examine the court’s disposition in this case as to the liability of
the petitioner in the light of the judgment rendered (1) holding the petitioner
and Contech jointly and severally liable, and (2) giving the right to the
petitioner to be reimbursed for whatever
amount it shall pay the respondent.[32]
In Citytrust Banking Corporation v. Court of Appeals,[33]
the Court stated that a judgment may determine the ultimate rights of the
parties on the same side as between themselves, such that questions of primary
and secondary liability between joint tort-feasors may be determined. Such
judgment does not make the “co-defendants” adversaries. It permits only the determination of
questions of primary and secondary liability between joint tort-feasors.[34]
In Weiner
v. Mager & Throne, Inc., et al.,[35]
it was held that –
In order to avoid a multiplicity of suits, and to place it in the power of the defendant to get a determination of an entire controversy in a single action, statutory provision is made whereby, if the rights of the defendants as between themselves are determinable in an action, the whole matter may be disposed of in the judgment of such action, instead of leaving the defendants to litigate independently after the judgment has been entered in the main action.
From the foregoing, it is clear that
this Court is not precluded from rendering a judgment that determines the
liabilities of the “co-defendants” (petitioners and Contech) in this case. Rather than invite the definite prospect of
the petitioners filing or instituting an action later on seeking reimbursement
from the party primarily liable, which in this case is Contech, it would be
more in keeping with the principles of expediency and the policy against
multiplicity of suits to make a direct adjudication in this regard. Considering
that there was no proffered evidence of negligence on the part of the
petitioners, the inescapable conclusion is that Contech is ultimately liable
and should answer for the cost of the damage.
Indeed, the facts show that Contech’s
negligence was the proximate cause of the damage. Construction is a field
requiring technical expertise. The
petitioners, as ordinary laymen, would understandably have no knowledge at all
about the technical aspect of constructing a building. This was precisely the reason why they
contracted the services of a reputable construction firm to undertake the
project. Petitioners had every right to rely on the warranties and
representations of their contractor.
We note that Contech has remained
silent, as if accepting its fate of liability in this case. The trial court observed that Contech did not
present evidence to controvert the parties’ assertions or prove their
allegations in the answer, despite an order to do so.[36] From the trial court’s decision, both the
petitioner and respondent filed their respective appeals while Contech no
longer challenged said decision. Thus,
the decision holding it liable has become final and executory.
Moreover, the trial court pointed out
that Contech fell short of its responsibility as contractor in this valuable
project. It failed to insure its work against possible risks. We quote:
Defendant Contech as the contractor should have been prudent enough as to have sought and acquired a Contractor All Risk (CAR) insurance policy and/or Erection All Risk (EAR) insurance policy in the course of such a construction that it had contracted with co-defendant Spouses. Had CAR & EAR insurance policies been availed of before any excavation was undertaken the plaintiff could have run after the insurance companies that could have covered those risks. Contractors of building should have taken the roles of the wise and prudent father to their customers or clients as they are specialists in themselves as their field of know-how in technology would always be demanded and extracted of them by all their patrons.[37]
As to the award for attorney’s fees
in the CA decision, the same should be deleted, as the appellate court did not
provide any basis whatsoever to justify the award.
WHEREFORE, the
petition is GRANTED. The Decision of
the Court of Appeals is SET ASIDE.
The decision of the Regional Trial Court is REINSTATED with the modification that Contech Construction
Technology Development Corporation, alone,
is ORDERED to pay respondent Li
Seng Giap & Sons, Inc., the sum of P4,010,843.50.
SO ORDERED.
ANTONIO
EDUARDO B. NACHURA
Associate
Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate
Justice
Chairperson
|
MA. ALICIA
AUSTRIA-MARTINEZ Associate Justice |
MINITA V. CHICO-NAZARIO Associate Justice |
RUBEN T. REYES
Associate
Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
CONSUELO
YNARES-SANTIAGO
Associate
Justice
Chairperson,
Third Division
C E R T I F I C A T I O
N
Pursuant to Section 13, Article
VIII of the Constitution and the Division Chairperson's Attestation, I certify
that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s
Division.
REYNATO
S. PUNO
Chief
Justice
[1] Penned by Associate Justice Mario L. Guariña III, with Associate Justices Rebecca de Guia-Salvador and Santiago Javier Ranada, concurring; rollo, pp. 35-43.
[2] TSN,
[3] CA Decision, p. 2, rollo, p. 36.
[4] Complaint, p. 5; records, p. 5.
[5] Rollo, pp. 52-53.
[6] Records, pp. 10-13.
[7] Rollo, pp. 101-102.
[8] Records, pp. 14-16.
[9] Rollo, p. 110.
[10]
[11]
[12] Exhibit “2,” records, p. 577.
[13] Exhibit “1,” id. at 576, with notation “Amendment.”
[14] Rollo,
p. 105.
[15] CA Decision, p. 6; id. at 40.
[16] TSN,
[17] TSN,
[18] TSN,
[19] Exhibit “P,” p. 9. (Underlining ours.)
[20] Rollo,
p. 108.
[21] Valenzuela
v. Court of Appeals, 323 Phil. 374,
388 (1996).
[22] Rollo,
p. 108.
[23]
[24] TSN,
[25] Records, pp. 671-672.
[26]
[27] Rollo,
pp. 107-108.
[28] Chan, Jr. v. Iglesia ni Cristo, Inc., G.R.
No. 160283, October 14, 2005, 473 SCRA 177, 186-187.
[29]
[30] G.R. No. 155173,
[31]
[32] Citytrust
Banking Corporation v. Court of Appeals, G.R. No. 92592,
[33]
[34] 49 C.J.S. Judgments §42.
[35] 167 Misc. 338, 3 N.Y.S.2d 918.
[36] Rollo,
p. 106.
[37]