Republic of the
Philippines
Supreme Court
Manila
SECOND
DIVISION
|
PHILAM INSURANCE COMPANY, INC. and
AMERICAN HOME INSURANCE CO., Petitioners, - versus - COURT OF
APPEALS, and D.M. CONSUNJI INC., Respondents. |
G.R. No. 165413 Present: CARPIO,
J., Chairperson, VILLARAMA,
JR.,* PEREZ,
SERENO,
and REYES, JJ. Promulgated: February
22, 2012 |
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DECISION
SERENO, J.:
In
this Petition for Review on Certiorari under Rule 45, petitioners Philam
Insurance Company, Incorporated (Philam) and American Home Insurance Company
(AHIC) seek the reversal of the Decision of the Court of Appeals (CA) in
CA-G.R. CV No. 60098 dated 28 June 2004 and its Resolution dated 24 September
2004. The CA Decision reversed and set aside that of the Regional Trial Court
(RTC) of Makati City in Civil Case No. 95-540 dated 28 April 1998.
The
CA ruled against petitioners demand for the recovery of the value of the
insureds generator set (genset) against private respondent D.M. Consunji
Incorporated (DMCI), whose alleged negligence damaged the said equipment.
The antecedent facts are as follows:
Four gensets from the United States of America were ordered
by Citibank, N.A. (Citibank). Petitioner AHIC insured these gensets under
Certificate No. 60221 for USD 851,500 covering various risks.[1]
The insurance policy provided that the claim may be paid in the Philippines by Philam
Insurance Co., Inc, AHICs local settling agent.[2]
Citibanks broker-forwarder, Melicia International
Services (MIS),[3]
transported the gensets in separate container vans. It was instructed by
Citibank to deliver and haul one genset to Makati City,[4]
where the latters office was being constructed by the building contractor,
DMCI.
MIS was further instructed to place the 13-ton genset[5]
at the top of Citibanks building. The broker-forwarder declined, since it had
no power cranes.[6] Thus,
Citibank assigned the job to private respondent DMCI, which accepted the task.[7]
On 16 October 1993, DMCI lifted the genset with a crane
(Unic-K-2000) that had a hydraulic telescopic boom and a loading capacity of 20
tons.[8]
During the lifting process, both the cranes boom and the genset fell and got
damaged.[9]
The events leading to the fall, based mainly on the signed
statement[10]
of DMCIs crane operator, Mr. Ariel Del Pilar, transpired as follows:
The
genset was lifted clear out of the open top container by the crane. After
clearing the container van, the crane operator, Mr. Ariel del Pilar, had to
position the genset over the vicinity of the storage area. To do this, the boom
of the crane carrying the generator set had to be turned (swing) to face right
and stopped when it loomed over the storage area. The genset was swinging as it
came to a stop following the right turn. The crane operator waited for the
genset to stop swinging for him to perform the next maneuver. The boom had to
be raised three (3) degrees more from its position at 75 degrees, up to 78
degrees. At 78 degrees the genset could be lowered straight down to the
delivery storage area.
The
genset stopped swinging. The crane operator proceeded to raise the boom to 78
degrees. While so doing, the crane operator felt a sudden upward movement of
the boom. The genset began to swing in and out, towards the crane operator,
then outward and away. The body of the crane lifted off the ground, the boom
fell from an approximate height of 9 feet, first hitting a Meralco line, then
falling to the ground.[11]
After
two days, DMCIs surveyor, Manila Adjusters & Surveyors Co. (MASC) assessed
the condition of the crane and the genset.[12]
According to its Survey Certificate, the genset was already deformed.[13]
Citibank demanded from DMCI the full value of the
damaged genset, including the cost, insurance and freight amounting to USD 212,850.[14]
Private respondent refused to pay, asserting that the damage was caused by an
accident.[15]
Thereafter, Citibank filed an insurance claim with
Philam, AHICs local settling agent, for the value of the genset. Philam paid the claim for PhP 5,866,146.[16]
Claiming the right of subrogation, Philam demanded
the reimbursement of the gensets value from DMCI, which denied liability.[17]
Thus, on 19 April 1994, Philam filed a Complaint with the RTC to recover the
value of the insured genset.[18]
At the trial court, petitioner Philam did not invoke
res ipsa loquitur. Rather, during the
pre-trial conference, the parties agreed on this sole issue: Whether or not
the damage was the fault of the defendant or within their area of supervision
at the time the cause of damage occurred.[19]
The RTC ruled in favor of Philam and ordered as
follows:
WHEREFORE PREMISES CONSIDERED, judgment
is hereby rendered in favor of plaintiff as against defendant ordering the
latter to pay plaintiff as follows:
1.
the amount of PhP 5,866,146.00 as actual
damages with interest at 6% per annum from the date of filing of this Complaint
until the sum is fully paid.
2.
the amount equivalent to 25% of the sum
recoverable as attorneys fees;
3.
cost of suit.
SO
ORDERED. [20]
The
trial court ruled that the loss or damage to the genset was due to the
negligent operation of the crane:
This
Court finds that the loss or damage brought about by the falling of the genset
was caused by negligence in the operation of the crane in lifting the genset to
as high as 9 feet causing the boom to fall [sic], hitting the Meralco line to
ground, sustaining heavy damage, which negligence was attributable to the crane
operator.[21]
DMCI
appealed to the CA, which reversed and set aside the RTCs Decision. The
appellate court ruled that the falling of the genset was a clear case of
accident and, hence, DMCI could not be held responsible.
In
this case, plaintiffs-appellees failed to discharge the burden of proving
negligence on the part of the defendant-appellants crane operator and other
employees assisting in unloading the genset.
xxx xxx xxx
The
falling of the genset to the ground was a clear case of accident xxx. xxx [D]efendant-appellant
cannot be held responsible for the event which could not be foreseen, or which
though foreseen, was inevitable.[22]
Accordingly, the dispositive portion reads:
WHEREFORE, there being
merit in the appeal, the assailed Decision dated April 28, 1998 of the Regional
Trial Court, Branch 61 of Makati City in Civil Case no. 95-1450, is REVERSED and SET ASIDE, and the complaint dismissed.
SO ORDERED.[23]
Hence,
the pertinent issue in this Petition is whether petitioners have sufficiently
established the negligence of DMCI for the former to recover the value of the
damaged genset. While this Court is not a trier of facts, and hesitates to
review the factual findings of the lower courts, in this occasion, it would do
so considering the conflicting legal conclusions of the RTC and the CA.
For DMCI to be liable for damages, negligence on its
part must be established.[24]
Additionally, that finding must be the proximate cause of the damage to the
genset.[25]
We agree with the CA that Philam failed to establish DMCIs negligence.
Negligence is the want of care required by the
circumstances.[26]
It is a conduct that involves an
unreasonably great risk of causing damage; or, more fully, a conduct that falls
below the standard established by law for the protection of others against
unreasonably great risk of harm.[27]
Philam blames the conduct of DMCIs crane operator for
the gensets fall. Essentially, it points out the following errors in operating
the crane:
First, Del Pilar did not give any reason for his act
of raising the boom from 75 to 78 degrees at the stage when the genset was
already set for lowering to the ground.[28]
Second, Del Pilars revving of the motor of the boom
triggered the chain of events starting with the jerk, then followed by the
swinging of the genset which was obviously violent as it caused the body of the
crane to tilt upward, and ultimately, caused the boom with the genset to fall.[29]
It would be a long stretch to construe these as acts
of negligence. Not all omissions can be considered as negligent. The test of
negligence is as follows:
Could
a prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take
precautions to guard against that harm. Reasonable foresight of harm, followed
by ignoring of the suggestion born of this prevision, is always necessary
before negligence can be held to exist.[30]
Applying
the test, the circumstances would show that the acts of the crane operator were
rational and justified.
Addressing Philams first submission, this Court
finds that the records are replete with explanations for why the boom of the
crane had to be raised from 75 to 78 degrees. Although the boom is already in
the general area of the gensets storage place, still, it had to be raised three
(3) degrees in order to put it exactly in the proper designation. At 78
degrees, the genset could be lowered straight down to the delivery/storage
area.[31]
DMCIs crane operation team determined accordingly that there was a need to
raise the boom in order to put the genset in the exact location. Indeed, the
heavy equipment must be secured in its proper place.
Proceeding to the more contentious claim, Philam emphasized
the apparent inconsistencies in Del Pilars narration. In his signed statement,
executed 15 days after the incident, Del Pilar stated that when he raised the
boom from 75 to 78 degrees, he revved the motor, upon which he felt the sudden
upward movement (jerk) of the boom followed by the swinging of the genset.[32]
But in his affidavit, executed already during the
trial, Del Pilar mentioned that he moved the boom slowly when he raised it to
78 degrees.[33]
Philam deems this narration questionable since the slow movement was never
mentioned in Del Pilars earlier signed statement.[34]
Examining the signed statement and the affidavit of Del
Pilar, petitioner Philam inaccurately portrayed his narration.
In his signed statement, Del Pilar already mentioned
that he slowly moved the genset, and when it swayed, he waited for the swinging
to stop before he lifted the equipment:
Itinuloy
ko na ang pag-angat ng genset at pagkatapos ng malagpas na sa open top van
container, dahan-dahan na ako nagpihit o
swing papunta sa kanan at pagkatapos ng nasa direksyon na ako ng paglalagyan, itinigil
ko ang pagpihit o pag swing pagkatapos hinintay ko ang genset sa paggalaw at ng
huminto na ang genset sa paggalaw, nagboom up ako mula 75 hanggang 78, sa
tantya ko at noong mag boom up, nag-rebolution (sic) ako at naramdaman ko na
biglang gumalaw paangat (paboom-up) ang boom ng Crane No. CR-81 at nag-swing na
naman patungo sa akin ang genset. At nang ito ay umindayog papalayo sa
crane ay doon ko naramdaman na iyong body ng Crane No. CR-81 ay umangat at
nakita kong tumumba ang boom ng Crane CR-81 at bumagsak ang genset sa loob ng
Citibank (sic) Parking Area. Noon ika-16 ng Octubre 1993 ng oras na alas 4:55
ng umaga. (Emphasis supplied.)
In
his affidavit, Del Pilars statements concentrated on the manner of lifting of
the genset. At this point, he recalled that the boom was raised slowly[35]:
T: Papaano mo naitaas ang boom ng crane
mula 75 digri hanggang 78 digri?
S: Dahan-dahan
lang po.
T: Pagkatapos
mong maitaas ang boom ng crane sa 78 digri, iyong inumpisahan ibinaba ang
generator set sa lupa subalit ito ay nagumpisang umugoy-ugoy o dumuyan-duyan
palabas at papasok ang karga na generator set patungo sa akin. Ito ba ay
tutuo?
S: Opo. [36](Emphasis
supplied.)
The affidavit, which the CA used as the main basis for
its Decision, pertained exactly to how the cranes boom had been raised. It is
only when a witness makes two sworn statements, and these two statements incur
the gravest contradictions, that the court cannot accept both statements as
proof.[37]
Logically, in order to raise the cranes boom, the
operator must step on the pedal; else, the 13-ton genset would not be brought
down. Philam did not even present expert evidence to challenge the need of
increasing the power supply to move the boom.
Donato F. Solis, DMCIs electrical engineer assigned
to supervise and coordinate the cranes operations, corroborated Del Pilars
description. He gave an eyewitness
account of the incident, and his statements thereon were taken by the surveyor,
MASC. Solis said:
Q: What happened when the genset was already
lifted out and at the above proposed storage area?
A: After it was already at above the
designated area, the genset was still swinging during the time (at about 4:50
a.m., October 16, 1993) and when the genset stopped swinging I noticed that it
was being lowered slowly to the ground and until approx. 6 feet above the
ground. I noticed that it was not being lowered because it was moving
diagonally toward us. When it was moving toward us we ran to avoid being hit by
the genset.[38]
Even
if Del Pilar failed to mention the slow manner of raising the boom in his earlier
signed statement, the reverse is not necessarily established. Persons are
easily liable to commit errors in the recollection of minute details of an
important occurrence.[39]
Alternatively,
Philam asserts that if care was exercised in operating the crane, and yet the
genset was damaged, then it must have been the very crane itself that was defective.[40]
We cannot give credence to mere conjectures and
assumptions on the condition of the crane to prove negligence. In Picart v. Smith, the Court stressed that
abstract speculations cannot be of much value:
The
question as to what would constitute the conduct of a prudent man in a given
situation must of course be always determined in the light of human experience
and in view of the facts involved in the particular case. Abstract speculations
cannot here be of much value but this much can be profitably said: Reasonable
men govern their conduct by the circumstances which are before them or known to
them. They are not, and are not supposed to be, omniscient of the future. Hence
they can be expected to take care only when there is something before them to
suggest or warn of danger.[41]
The
speculative assertion of Philam should be supported by specific evidence of the
cranes defects. Instead, Philam utterly failed to contradict the findings of
MASC which made an actual site inspection to observe the crane used in lifting
the genset. In its Survey Certificate, it stated that: [U]pon close examination, the crane was observed in actual operation and
found to be in satisfactory working condition.[42]
(Emphasis supplied.)
Since Philam failed to convince us of actions that
would lay the blame on DMCI, this Court agrees with the CA that DMCI exercised
the necessary care and precaution in lifting the genset.
Firstly, a whole team was involved in transferring
the genset. Petitioners did not even the question the acts of the other team
members involved in the crane operations. Del Pilar stated thus:
T: Ikaw lang ba mag-isa ang magbababa ng
nasabing generator set?
S: Hindi po, ako po ay tinulungan ng isang
katrabahong rigger na ang pangalan ay si G. MARCELINO ROMERO, ng aming
Foreman na si G. FERNANDO DELA ROSA ng Motor Pool, isang mekaniko, at ni DONATO
SOLIS, isang ehenyero.
T: Anu-ano tulong o ayuda ang naibigay sa
iyo ng bawat isa sa mga taong iyong nabanggit?
S: Si G. MARCELINO ROMERO na isang rigger
ay tumulong sa akin upang maitali ang generator set sa kable ng crane at sa
pagbibigay ng senyas sa akin kung kailan itataas ang pagbuhat ng generator set,
kung kailan magaalalay sa pagtaas at mga iba pang bagay-bagay na may kinalaman
sa pagpapatakbo ng crane. Ang motor pool foreman ay nandoon naman upang
tingnan at subaybayan na lahat ng bagay pangkaligtasan sa pagbubuhat ng crane
sa generator set upang itoy maibaba ng maayos. Si Ehenyero DONATO SOLIS ay
ang pangkalahatang nangangasiwa sa pagbubuhat o paglalapag ng nasabing
generator set. Ang mekaniko naman na hindi ko na matandaan ang kanyang
pangalan ay nandoon upang tumulong kung sakaling magkakaroon ng suliranin
pang-mekanikal ang crane.[43]
Secondly,
as found by the CA,[44]
Del Pilar exercised reasonable care and caution when he tested the crane four
times right before actual operations
to make sure that it could lift the genset. He stated further:
T: Maari (sic) mo bang isalaysay ang buong
pangyayari tungkol sa pagbuhat at pagdiskarga ng genset mula sa open top van
container na nasa trailer ng ibabaw ng Marzan Trucking?
S: Nang matalian po namin (ako at ang
nasabing rigger man) ang genset, pumunta na po ako sa operating cab ng Crane
No. CR-81 pagkatapos pinaandar ko ang Crane CR-81 para umpisahan iangat ang
genset mula sa open top container pagkatapos sinubukan ko ng buhatin ang genset
at nang mabuhat ng isa o dalawang dangkal, ibinaba ko ito muli sa dating pwesto
ng maka-apat na beses.
T: Bakit mo ibinaba ng apat na beses ang
genset mula ng ito ay iangat mo?
S: Sinisigurado ko ho na kaya ng Crane No.
81 ang bigat ng genset[.][45]
The
testing of the crane during actual operations was corroborated by Solis when he
stated as follows:
Q: What did you observe during the lifting
operation?
A: During the lifting operation, I noticed
that it took awhile (approx. 30 minutes) in lifting the genset, because the
Crane Operator, Mr. Ariel del Pilar was testing the lifting capability of Crane
No. CR-81. I saw the genset, which was several times lifted about 1 foot high
from the flooring of the open top van container.[46]
Thirdly,
as can be gleaned from the statements above, Del Pilar stopped turning the
controls, and it was only when the swinging stopped that he performed the next
maneuver. All of these acts, as proven by the evidence, showed due diligence in
operating the crane.
In their final effort to reverse the appellate court,
petitioners invoked res ipsa loquitur, even
if they never had raised this doctrine before the trial court.
According to petitioners, the requisites of res ipsa loquitur are present in this
case.[47]
Had the principle been applied, the burden of proof in establishing due
diligence in operating the crane would have shifted to DMCI.[48]
In this case, res
ipsa loquitur is not applicable, since there is direct evidence[49]
on the issue of diligence or lack thereof pertaining to the lifting of the
genset. The doctrine is not a rule of substantive law, but merely a mode of
proof or a mere procedural convenience.[50]
In any event, res
ipsa loquitur merely provides a rebuttable presumption of negligence. On
this, we have already pointed out that the evidence does not prove negligence on
the part of DMCI, and that due diligence on its part has been established.
Hence, it has generally been held that the
presumption arising from the doctrine cannot be availed of, or is overcome when
the plaintiff has knowledge and testifies or presents evidence as to the specific
act of negligence that caused the injury complained of; or when there is direct
evidence as to the precise cause of the accident, and with all the attendant facts
clearly present.[51]
Finally, neither the presumption nor the doctrine would apply when the circumstances
have been so completely elucidated that no inference of the defendant's
liability can reasonably be made, whatever the source of the evidence.[52]
Absent any finding of negligence, we sustain the
CAs findings that DMCI exercised due diligence; that the event is an accident;
and that consequently Philam cannot claim damages for the damaged genset.[53]
IN VIEW
THEREOF, the assailed 28 June 2004 Decision of the Court of Appeals and its
24 September 2004 Resolution are AFFIRMED.
The 11 October 2004 Petition for Review filed by Philam Insurance Company,
Inc. and American Home Insurance Corporation is hereby denied for lack of merit.
SO ORDERED.
MARIA
LOURDES P. A. SERENO
Associate Justice
WE
CONCUR:
Chairperson
MARTIN
S. VILLARAMA, JR. JOSE PORTUGAL PEREZ
Associate
Justice Associate Justice
BIENVENIDO
L. REYES
Associate Justice
A T T
E S T A T I O N
I
attest 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
Courts Division.
Chairperson, Second
Division
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairpersons 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 Courts Division.
RENATO C. CORONA
Chief Justice
* Designated as Acting member
in lieu of Associate Justice Arturo D. Brion per Special Order No. 1195 dated
15 February 2012.
[1] CA Decision penned by
Associate Justice Hakim S. Abdulwahid, with Associate Justices Elvi John S.
Asuncion and Mariano C. del Castillo concurring, p. 1; rollo, p. 17.
[2] Citibanks Letter
dated 27 October 1993, Exhibit A; RTC records, p. 252.
[3] Survey Certificate of
Manila Adjusters & Surveyors Co., Exhibit O-2; RTC records, p. 276.
[4] Citibanks Letter
dated 14 October 1993, Exhibit 1; RTC records, p. 347.
[5] Survey Certificate of
Manila Adjusters & Surveyors Co., supra note 3.
[6] Affidavit of
Edilberto C. Palisoc, DMCIs Area Manager, dated 7 October 1997, Annex Det-1;
RTC records, p. 342.
[7] Id.
[8] Survey Certificate of
Manila Adjusters & Surveyors Co., Exhibit 4-b; RTC records, p. 278.
[9] Statement of Ariel
del Pilar, DMCIs crane operator, dated 21 October 1993; RTC records, p. 285.
[10] Id.
[11] Petitioners Petition
for Review, pp. 3-4; rollo, pp. 5-6.
[12] Survey Certificate of
Manila Adjusters & Surveyors Co., Exhibit 4-c; RTC records, p. 278.
[13] Citibanks Letter
dated 21 October 1993, Exhibit 2; RTC records, p. 348.
[14] DMCIs Letter dated
22 October 1993, Exhibit 3; RTC records, p. 350.
[15] Citibanks Letter, supra
note 2; RTC records, p. 252.
[16] Subrogation Receipt
dated 6 April 1994, Exhibit T; RTC records, p. 305.
[17] CA Decision, supra
note 1, p. 2; rollo, p. 18.
[18] Philams Complaint
dated 18 April, 1994; RTC records, p. 1.
[19] RTC Order dated 10
October 1995; RTC records, p. 184.
[20] RTC Decision penned
by Judge Fernando V. Gorospe Jr., p. 2; CA rollo,
p. 37.
[21] Id.
[22] CA Decision, supra
note 1, p. 8; rollo, p. 24.
[23] Id. at 25.
[24] Brown v. Manila Electric Road and Light Co., 20 Phil. 406 (1911).
[25] American Express International v. Cordero, 509 Phil 619 (2005).
[26] Picart v. Smith, 37 Phil. 809 (1918).
[27] Id.
[28] Petitioners Petition
for Review, supra note 11, supra no p. 6; rollo,
p. 8.
[29] Petitioners
Memorandum, p. 11; rollo, p. 68.
[30] Picart v. Smith, supra note 26.
[31] Affidavit of Ariel
del Pilar, DMCIs crane operator, dated 29 April 1997; RTC records, p. 371.
[32] Statement of Ariel
del Pilar dated 21 October 1993, supra note 9.
[33] Affidavit of Ariel
del Pilar dated 29 April 1997, supra note 31.
[34] Petitioners Petition
for Review, supra note 11, p. 7; rollo,
p. 9.
[35] Affidavit of Ariel
del Pilar, dated 29 April 1997, supra note 31.
[36] Id.
[37] Mondragon v. CA, 158 Phil. 1135 (1974).
[38] Statement of Donato
F. Solis, DMCIs Electrical Engineer, dated 21 October 1993; RTC records, p.
288.
[39] People v. Resayaga, G.R. No. L-23234, 26 December 1973, 159 SCRA
426.
[40] Petitioners Petition
for Review, supra note 34.
[41] Picart v. Smith, supra note 26, at 813.
[42] Survey Certificate of
Manila Adjusters & Surveyors Co. supra note 3; RTC records, p. 279.
[43] Affidavit of Ariel
del Pilar dated 29 April 1997, supra note 31.
[44] CA Decision, supra
note 1, p. 7; rollo, p. 23.
[45] Statement of Ariel
del Pilar dated 21 October 1993, supra note 9; RTC records, p. 283.
[46] Statement of Donato
F. Solis, supra note 38; RTC records, p. 287.
[47] Petitioners Petition
for Review, supra note 11, p. 9; rollo,
p. 11.
[48] Id.
[49] Ludo and Luym Development Corporation v. Barreto, 508 Phil. 285 (2005).
[50] Layugan v. IAC, 249
Phil. 369 (1988), citing Corpus Juris Secundum, Vol. 65A, 529.
[51] Id. at 544.
[52] Id. at 545-548.
[53] Brown v. Manila Electric Road and Light Company, supra note 24.