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G.R. No. L-64556 June 10, 1988

THE PEOPLE OF THE PHILIPPINES, plaintiff,

vs.

CEFERINO LUNGAAN, accused.

GANCACO, J.:

Rape is a serious offense against chastity. Its essential element is involuntariness. More often than not, the credibility of the offended party is vital.

Failing in this, the prosecution cannot make out a case.

This is demonstrated in a review of the conviction of the accused Ceferino ungayan by the Regional Trial Court !RTC" of #chague, Isabela for the

crime of rape, who was thereby imposed the penalty of reclusion perpetuawith all the accessory penalties provided for by law, and ordered to

indemnify the victim $gripina %uan &da. de 'ar(ota in the amount of )*+,. for moral damages without subsidiary imprisonment in case of

insolvency, and to pay the costs, in a decision dated $pril -, *-+.

The evidence for the prosecution show that the complainant $gripina %uan &da. de 'ar(ota, then /+ years old and a widow, was asleep inside the

room at their market stall located in the public market of barangay 0scari(, municipality of Ramon, Isabela, on the evening of %anuary +, *-. 1ith

her were her two married daughters 2ilveria and eticia, the latter 3s husband 4erting 'arcia and the children of said daughters. $t about *5 o3clock

of that evening, 2ilveria heard someone knock at their door and when she opened it she saw the accused who was then the barangay captain of

4arangay 0scari(. 6e asked 2ilveria if her mother was in. 2he answered in the affirmative and added that her mother was asleep. 7evertheless, the

accused entered the room where complainant was sleeping and woke up the complainant. 6e invited her to 8oin him to observe the persons drinking

wine in the market stall identified as inda3s canteen in violation of the barangay ordinance prohibiting the same after *5 o3clock in the evening.

Complainant went with the accused to the said canteen which was only one market stall away. They stood about two meters away from the open door

of the canteen, the electric lights of which were open inside. They stayed at the place for ten minutes standing side by side without talking to each

other. They were observing the people drinking in the canteen. 2uddenly the accused grabbed both hands of complainant so complainant reacted by

shouting very loud only once. 6er cries could not be heard by the people drinking inside the canteen because of the loud stereo player. The accused

slapped her and brought out his gun which he pointed at her breast threatening to kill her if she creates any noise. The accused then pulled her and

she fell on the ground hitting her head on the pavement so she lost consciousness, sustaining in8uries on the palms of her hands.

1hen she regained consciousness after a short while, she was dragged by the accused towards the banana grove near the market. 2he managed tostand and walk while being dragged. The accused then carried her body across the canal and dropped her on the ground causing her to fall flat on her

belly and her fingers were again in8ured by the broken glasses on the ground. 2he could not free herself nor shout for help because of the threat to her

life.

$fter she fell flat on the ground, the accused held her and pressed her down and he proceeded to remove her skirt and shorts and thereafter her

blouse leaving her e9posed naked with her back to the ground. 2he was not wearing any panty or brassiere then. 4esides pressing her down the

accused stepped on her thigh with his left foot as he went on top of her naked body. Then he stood up warning her not to make any noise and he

removed his pants and tee:shirt after which he again went on top of her naked body holding her hands. )ointing the gun at her breast anew, the

accused repeated his threat to kill her if she resisted. Then the accused started mashing her breast and succeeded in having se9ual congress with the

complainant. 2he felt his penis penetrating her vagina followed by a push and pull movement for less than an hour, until she felt semen emitting from

his penis and entering her body. $fter a while, he stood up, put on his pants and warned her not to tell her children about what he had 8ust done to her

or ask for help for he will kill her. 6e left her in tears. $fter the accused had gone, complainant put on her shorts and shirt which were muddy as it

previously rained that day and went home still crying.

1hen she reached home about *+5 midnight, 2ilveria asked her what happened and she revealed that the accused abused her. 1hen 2ilveria

pressed for details, the complainant replied that she will tell her the following morning.

$s she promised, the ne9t morning complainant told 2ilveria everything that happened to her and thereafter she proceeded to 2antiago town and

reported the incident to Mr. 2egundo Maylem, post commander and #9ecutive &ice Chapter Commander, &F) 2outhern Isabela, from whom she

sought assistance. 2he was advised to submit herself to an investigation and medical e9amination, 0n the same day, the complainant was e9amined

by ;r. 7ormita &illarico, chief of the Cagayan &alley 2anitarium 6ospital. $fter due investigation by the )C, a complaint for rape was filed signed and

sworn to by complainant in the Municipal Circuit Court of Ramon, Isabela against the accused.

In appealing his conviction, the accused, through counsel assailed the credibility of complainant and interposed the defense of denial and alibi.

6owever, by way of rebuttal of the )eople3s brief filed by another collaborating counsel for appellant, the failure of the prosecution to establish

involuntariness on the part of the victim was emphasi(ed.

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The appeal is impressed with merit.

There is no

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16#R#F0R#, the 8udgment appealed from is R#R2#; $7; 2#T $2I;# and another 8udgment is hereby

rendered $C>?ITTI7' the appellant of the offense charged, with costsde oficio.

20 0R;#R#;.

G.R. No. L-!!049 No"e#$e% &9, 19'6

THE PEOPLE OF THE PHILIPPINES, plaintiff:appellee,

vs.

GUILLER(O PUTIAN, )*+) GUIR(O accused:appellant.

Alaric P. Acosta for appellant.

Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista, and

Solicitor Leonardo I. Cru for appellee.

AUINO, J:

'uillermo )utian appealed from the decision of the Court of First Instance of Misamis

0ccidental, finding him guilty of murder, sentencing him to reclusion perpetuaand ordering

him to indemnify the heirs of Teodulo )animdim in the sum of twelve thousand pesos

!Criminal Case 7o. @A@+".

The peculiarity of this case is that no eyewitness was presented to testify on the assault which

resulted in the victim3s death !2ee )eople vs. ;ahino, -- )hil. A- as to murder proven bycircumstantial evidence".

The prosecution presented only two witnesses5 !*" The doctor who treated the victim at the

hospital and who testified on the nature of his wound and the cause of his death !#9h. $" and

!+" the policeman who arrested the accused and sei(ed from him the dagger allegedly used in

the stabbing !#9h. 4" and who took down the victim3s ante:mortem statement Identifying

B'uirmoB )utian as his assailant !#9h. C".

0n the other hand, the accused did not testify in his own behalf. The defense presented only

one witness. 6e testified that appellant )utian was in the dance hall when the victim wasstabbed outside that hall.

6ence, in this appeal our task is to determine whether the prosecution3s evidence establishes

appellant3s guilt beyond reasonable doubt and, if so, whether the offense is murder or

homicide. Those are the two issues raised by the appellant in his eight:page brief.

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$ppellant )utian admits that on 7ovember ++, *@ while Teodulo )animdim was attending a

dance at 4arrio Tabo:o, %imene(, Misamis 0ccidental, he !)animdim" was stabbed in the left

groin. $s a result of that assault, )animdim died five days later at the provincial hospital !p. ,

brief". The

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Can you sign your name in this anti:mortemD Ees

2tatement taken by )at. Eap.

2gd.

!eodulo

Pani"di"

T#0;?0

)$7IM;IM

2ign in the presence of

*. &ictorino )animdim

+. 4en Ebalane

. Miguel >uilo

1itnesses

1hen that statement was taken, )animdim was in a sitting position. )atrolman Eap advised

him to go to a hospital for treatment. )animdim stood up, fle9ed his muscles and said that

there was nothing to worry about because the wound was small. 1ithout anybody3s help, he

put on his undershirt, pants and shirt. 6e went to his house without anyone3s assistance.

Eap e9plained that )animdim mentioned only a person named 'uirmo and that he, Eap, wasthe one who added the surname )utian in the statement #9hibit C. 6e clarified that he wrote

that surname because he knew of no other person called 'uirmo in that locality e9cept

'uirmo )utian, an alleged gambler !++ tsn".

0n 7ovember +, one day after the stabbing, the victim was brought to the hospital. $n

operation was performed on him. 6e died in the hospital on 7ovember +A, or five days after

he was assaulted !#9h. ;". The attending physician certified that the victim had a stab wound

in the left groin which penetrated the abdomen and punctured the large intestine. ;eath was

due to Bto9emia secondary to general peritonitisB !#9h. $". The doctor testified that the stab

wound could have been caused by the two:bladed dagger !pun#al", #9hibit 4.

The slender evidence for the defense consists merely of the meager testimony of $nacleto

Taporco, /=, the assistant provincial board secretary and former candidate for mayor, who

claimed to be a friend of )animdim and a close friend of )utian. Taporco declared that in the

evening of 7ovember ++, *@ he was in the barrio dance hall together with appellant )utian,

0limpio 2itoy and Ramon 'imeno. )animdim was also there.

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Taporco said that )animdim, +*, asked his permission to bo9 Rogelio 0pos. Taporco

allegedly advised )animdim not to do so because bo9ing 0pos would cause trouble in the

dance hall. )animdim obeyed him but sometime later )animdim again asked Taporco that he

be allowed to bo9 0pos. Taporco dissuaded )animdim and took him outside the dance hall.

$fterwards, Taporco was allegedly informed that there was trouble. 1hen he tried to find out

what the trouble was, he was informed that it was already patched up. ;uring that interval,

)utian never left the dance hall.

The trial court, in convicting )utian, regarded )animdim3s ante:mortem statement as part of

the res gestae. 0bviously, it did not give to that statement the probative value of a dying

declaration because the declarant at the time he made the statement was not under a

consciousness of an impending death !2ee see. *, Rule *, Rules of CourtG )eople vs.

2aliling, :+AA=, February +A, *A@, @ 2CR$ =+A".

The trial court did not give any credence to )utian3s alibi. It noted that he did not take the

witness stand to refute )animdim3s declaration naming )utian as his assailant. The trial court

surmised that through )utian3s machinations some witnesses listed in the information did not

testify for the prosecution.

$ppellant )utian challenges the trial court3s ruling that )animdim3s ante:mortem statement

was part of the res gestaeas envisaged in Rule * of the Rules of Court which provides5

2#C. @. Part of t$e res gestae. 2tatements made by a person while a

startling occurrence is taking place or immediately prior or subse

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brief, concise, natural and devoid of any design or deliberation. 6e argues that the fact that

)atrolman Eap added the surname )utian to the name B'uirmoB, which was mentioned by the

victim, did not destroy the probative value of the statement because the appellant could have

shown that there were other persons in the locality named 'uirmo but he failed to do so.

The 2olicitor 'eneral cites the ruling that a declaration made by a person immediately after

being wounded, pointing out or naming his assailant, may be considered as part of the res

gestae and is admissible in evidence !)eople vs. $lfaro, - )hil. -/G )eople vs. $nanias, @

)hil. A".

1e hold that the trial court did not err in characteri(ing )animdim3s statement as a part of the

res gestaeand as proving beyond reasonable doubt that )utian inflicted upon him the stab

wound that caused his death five days later in the hospital.

The res gestaerule embraces !a" spontaneous e9clamations and !b" verbal acts !/ Moran3s

Comments on the Rules of Court, *A #d., p. @+". The trial court admitted )animdim3s

statement as a spontaneous statement made after the commission of a felony !)eople vs.

Talledo and Timbre(a, -/ )hil. /".

$ppellant )utian contends that )animdim3s statement was not spontaneous because it was

Bmade several hours after the incidentB. 6e claims that the re

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declaration, yet if such declaration was made at the time of, or i""ediatel# after, t$e

co""ission of t$e cri"e, or at a ti"e %$en t$e exciting influence of t$e startling occurrence

still continued in t$e declarant&s "ind, it is admissible as a part of the res gestae'!/ Moran3s

Comments on the Rules of Court, *A #d. pp, A:=, citing )eople vs. )alamos, = )hil.

@*G )eople vs. )ortento, =- )hil. A*G )eople vs. Reyes, /+ )hil. /-".

)animdim3s statement was given sometime after the stabbing while he was undergoing

treatment at a medical clinic. 6e had no time to concoct a falsehood or to fabricate a

malicious charge against )utian !2ee )eople vs. 7er. :+//=, %uly *, *@, +- 2CR$ **/*,

**@*:+". 7o motive has been shown as to why he would frame up )utian.

$ppellant3s alternative contention that treachery was not proven and, therefore, he can be

convicted only of homicide is meritorious. The evidence for the prosecution does not show the

manner in which the wound was inflicted. 6ence, the crime imputable to appellant )utian is

homicide !)eople vs. Ramolete, :+-*-, March +A, *A=, /@ 2CR$ @@, -".

$s correctly observed by the 2olicitor 'eneral, the trial court erred in appreciating the

aggravating circumstance of nighttime. 7octurnity is not aggravating in this case because it

was not purposely sought by the offender to facilitate the commission of the crime.

The trial court3s decision is modified. $ppellant )utian is convicted of homicide. $s the

commission of the crime was not attended by any modifying circumstances, he is sentenced

to an indeterminate penalty of ten !*" years of prision "a#oras minimum to fifteen !*/"

years of reclusion te"poral medium as ma9imum. The indemnity of )*+, fi9ed by the trial

court is affirmed. Costs against the appellant.

20 0R;#R#;.

Fernando (C$air"an), Barredo, Concepcion, *r. and +artin, **., concur.

G.R. No. 8'085 Fe$%u)% &, 199!

PEOPLE OF THE PHILIPPINES, plaintiff:appellee,

vs.

(ANOLITO TOLENTINO / ONG, CARLITO TALA / O, RO2OLFO (ATA3ARAN )n / JOHN 2OE, accused:appellants.

!$e Solicitor General for plaintiffappellee.

Pu-lic Attorne#&s ffice for accusedappellants.

NOCON, J.:

This is an appeal by accused Carlito Tala alias B4oyB from the decision1dated 2eptember A, *-- of the Regional Trial Court of

'uagua, )ampanga, Third %udicial Region, 4ranch /* in Criminal Case 7o. ':*@+A, the pertinent portion of

which reads5

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Finding that the evidence has reached a degree of moral certainty that all the elements of the

crime of robbery with homicide were ade

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thirty !" days and will incapacitate said 'race )aule from performing her customary labor for

the same period of time.!

?pon arraignment, accused Tala, Tolentino and Matawaran pleaded B7ot 'uiltyB while their co:accused named

only %ohn ;oe in the $meded Information was never identified by the prosecution nor arrested. 6owever, during

the initial hearing of this case, accused Manolito Tolentino change his plea from B7ot 'uiltyB to B'uiltyB in open

court.4

The facts as found by the trial court are as follows5

$t around A p.m. of 7ovember A, *-, $delaida ingad left her niece, 'race )aule and her three !" children

namely5 'eraldine !Irene", 'lenly and #nri

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accused Manolito Tolentino is her uncle as well as her barriomate and accused:appellant Carlito Tala is a relative

of her mother while accused Rodolfo Matawaran is the BbarkadaB of accused:appellant Tala.

0n the otherhand, accused:appellant Tala denied having been in the house of $delaida ingad on that fateful

morning and maintained that at around ** p.m. of 7ovember A, *-, he and accused Matawaran were

delivering watermelons at 2aging, ;inalupihan, 4ataan. Thereafter, they went to 2amal to return the trailer

where the watermelons were loaded and proceeded to his house in ourdes, ubao, )ampanga. 0n their way

home, they passed the house of $delaida ingad and noticed nothing unusual. They arrived at his house at

around a.m. of 7ovember -, *- and slept there.

In re8ecting the defense of alibi, the trial court correctly stated as follows5

Inasmuch as the two accused, Tala and Matawaran, were riding in a 8eep and the scene of

occurence is only a minutes drive from their place of destination, which is ;inalupihan,

4ataan, it is stillJ possible for them to reach their alleged destination and come back to ourdes,

ubao, )ampanga in time to participate in the commission of the offense. Their painful and

laborious effort to e9tend the period of time especially the three hours to load the watermelons is

pitiful in its incredibility. The indubitable fact remains that despite all allegations alleging alibi the

accused Tala and Matawaran slept in ourdes, ubao and were in fact apprehended there.

It must be noted that the alibi in order to be given full faith and credit must be clearly established

and must not leave any room for doubt as to its plausibility and verity.

In order that alibi as a defense may prosper, the evidence to support it must be clear and

convincing as to preclude the possibility of the accused3s presence at the scene of the crime

while the evidence as to his identification must be weak and insufficient.

Foremost and above all, it is essential that the defense of alibi cannot prevail over the positive

testimony of a witness who clearly identified them as two of the cohorts of Manolito Tolentino.

It is clear that in this case that the accused Tala and Matawaran failed to establish the credibility

of their defense of alibi, first, as the facts narrated by them were not clear and convincing,

second, there e9ist a wide room for doubt as to the plausity and verity of their testimonies, and

finally, their defense of alibi is belied by the positive identification made by 'race )aule. 8

Resolving the arguments of accused:appellant Tala that no probative value should be given to the e9tra8udicial

statement of 'race )aule taken by Fiscal $biog while she was still staying at the Makabili 6ospital, since his

name and that of accused Matawaran were not mentioned by her as the unnamed companion of accused

Tolentino, thereby indicating that the witness really had no inkling as to his participation in said crime until Mang

Medrano supplied her their names, does not convince ?s of the want of probative value of said statement of

'race )aule.

True that 'race failed to mention the names of accused:appellant Tala and accused Matawaran in her

e9tra8udicial statement, but considering the fact that at the time her statement was taken she was then groggy

and delirious from the stab wound she sustained but was nevertheless, able to positively identify accused:

appellant on the witness stand as one of the persons who stabbed her and the children. 1e find 'race3s

testimony credible. There is no evidence on record to show why said witness would falsely implicate the

accused:appellant Tala who is a relative of her mother unless it is the truth. There being no improper motive on

her part to point to accused:appellant as one of the perpetrators of the crime charged, 'race3s testimony is

entitled to full faith and credit.9Moreover, her testimony was corroborated by prosecution witness $delaida

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ingad when the latter testified that her deceased daughter 'eraldine mentioned the names of the accused:

appellant Tala and accused Matawaran as the persons who stabbed her before she died.10

$s to accused:appellant3s contention that the statement of 'eraldine, naming her assailant soon after she was

stabbed is inadmissible as part of res gestae, 1e find said contention fallacious. The testimony of $delaida

ingad, as mother of the victims belied the accused:appellant3s allegation5

Fiscal $biog5

May I make it of record that all these three accused were properly or positively

identified by the witness.

7ow, Mrs. 1itness, when we initially hear this case, you testified that you asked

'eraldine who was then at the porch, you asked her as to who stabbed or

caused those stabbed wounds and you testified that she told you she was

stabbed by a certain 4ong:4ong. 7ow, in the courtroom, you pointed out to a

certain person which you recogni(ed or you know to be Manolito Tolentino, do

you know the nickname of that Manolito Tolentino who is residing in your barrioD

$ Ees, sir.

> 1hat is the nickname of that Manolito TolentinoD

$ 4ong:4ong, sir.

> $nd you also mentioned that before you asked 'eraldine as to who accused

those stabbed wounds, 'eraldine made a sign with her three fingers, did you

not ask her what she meant with that sign with her three fingersD

$tty. 2ampang5

The

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to you when you saw or witnessed this incident when you observed your

children and you niece in this conditionD

$ I asked my youngest child, sir.

Fiscal $biog5

> $nd the youngest child you are referring to or what is the name of your

youngest childD

$ #nri $nd what did you ask #nri $lright, after you asked #nri $nd when you regained consciousness or where did you regain your

consciousnessD

$ $t the house of my mother, sir.

> 1ill you please tell us how far is that house of your mother from the place of

you residenceD

1itness5

$ From here up to that corner, sir.

Court5

1hich cornerD

$ ?p to there, sir. !1itness pointing to %oan3s Refreshment".

Fiscal $biog5

1hich is about two hundred meters, more or less.

$tty. 2ampang5

1e agree, your 6onor. !T.2.7., 0ctober +, *-=, pp. @:*".

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The trial court had correctly applied the principle of res gestae, namely5 !*" that the principal act, the res gestae,

be a startling occurrenceG !+" that the statements were made before the declarant had time to contrive or deviseG

and !" that the statements made must concern the occurrence in

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heldnot made "in the regular course" of business within the meaning of the Act of June 20, 19!, andnot admissible as evidence thereunder. . 1# $. %. 111.

2. A ruling of the trial court that, if the defendant called for and inspected a signed statement which, oncross&e'amination, a witness for the plaintiff stated he had given to the plaintiff(s lawyer, the plaintiffwould then be entitled to put the statement in evidence, heldnot a ground for reversal in this case, since

the document was not mar)ed for identification and is not a part of the record, and this *ourt istherefore unable to determine whether the contents would have served to impeach the witness. .1#$. %. 11!.

. +ule #c- of the +ules of *ivil rocedure does not ma)e contributory negligence an affirmativedefense, but relates only to the manner of pleading. . 1# $. %. 11.

/. he uestion of the burden of establishing contributory negligence is a uestion of local law whichfederal courts in diversity of citienship cases must apply. .1# $. %. 11.

3. he ruling of a lower federal court upon a uestion of local law will not here be set aside e'cept on a

plain showing of error. . 1# $. %. 11#.

!. 4n a, suit in a federal court in 5ew 6or), in which two of the causes of action were based on a7assachusetts statute and two were based on the common law, the court charged the 8ury that theburden of proving contributory negligence was on the defendants. he defendants( e'ception to thecharge did not differentiate between the causes of action based on the statute and those based on thecommon law. Again without differentiating between the statutory and the common law causes ofaction, the defendants reuested a charge that the burden was on the plaintiff to establish freedom fromcontributory negligence. 4n this situation, this *ourt, assuming that the charge, so far as the commonlaw counts are concerned, was

age 1# $. %. 110

erroneous, but being unable to say that the charge was incorrect so far as the statutory cause of actionare concerned, does not reverse and remand the cause. .1# $. %. 119.

. here a party might have obtained a correct charge to the 8ury by specifically calling the attention ofthe trial court to the error, and where a part of the charge was correct, he may not through a generale'ception obtain a new trial. . 1# $. %. 119.

129 :.2d 9!, affirmed.

*ertiorari, 1 $.%. !11, to review the affirmance of a 8udgment against the petitioners in an action fordamages on account of in8ury and death alleged to have been due to negligence. he 8urisdiction of thefederal court was invo)ed on the ground of diversity of citienship.

7+. J$%4*; ?A% delivered the opinion of the *ourt.

his case arose out of a grade crossing accident which occurred in 7assachusetts.

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brought by respondent as administrator of the estate of his wife and alleged the same common law andstatutory negligence as the first two counts. =n the uestion of negligence, the trial court submittedthree issues to the 8ury && failure to ring a bell, to blow a whistle, to have a light burning in the front ofthe train. he 8ury returned a verdict in favor of respondent individually for some 23,000 and in favorof respondent as administrator for 9,000. he

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course, since business, as defined in the Act, includes the professions. e would then have a realperversion of a rule designed to facilitate admission of records which e'perience has shown to be uitetrustworthy. Any business, by installing a regular system for recording and preserving its version ofaccidents for which it was potentially liable, could ualify those reports under the Act. he result wouldbe that the Act would cover any system of recording events or occurrences provided it was "regular,"and though it had little or nothing to do with the management or operation of the business as such.

reparation of cases for trial, by virtue of being a "business" or incidental thereto, would obtain thebenefits of this liberalied version of the early shop boo) rule. he probability of

age 1# $. %. 11/

trustworthiness of records because they were routine reflections of the day to day operations of abusiness would be forgotten as the basis of the rule. See Conner . Seattle, R. ! S. Ry. Co.,3! ash.10, 12, 1, 103 . !/. +egularity of preparation would become the test, rather than the character ofthe records and their earmar)s of reliability Chesa"ea#e ! Dela$are Canal Co. . Un%ted States,230$. %. 12, 230 $. %. 12#&129- acuired from their source and origin and the nature of their compilation.e cannot so completely empty the words of the Act of their historic meaning. 4f the Act is to bee'tended to apply not only to a "regular course" of a business, but also to any "regular course" ofconduct which may have some relationship to business, *ongress, not this *ourt, must e'tend it. %uch ama8or change which opens wide the door to avoidance of cross&e'amination should not be left toimplication. 5or is it any answer to say that *ongress has provided in the Act that the variouscircumstances of the ma)ing of the record should affect its weight, not its admissibility. hat provisioncomes into play only in case the other reuirements of the Act are met.

4n short, it is manifest that, in this case, those reports are not for the systematic conduct of theenterprise as a railroad business. $nli)e payrolls, accounts receivable, accounts payable, bills of lading,and the li)e, these reports are calculated for use essentially in the court, not in the business. heirprimary utility is in litigating, not in railroading.

4t is, of course, not for us to ta)e these reports out of the Act if *ongress has put them in. Dut there isnothing in the bac)ground of the law on which this Act was built or in its legislative history whichsuggests for a moment that the business of preparing cases for trial should be included. 4n thisconnection, it should be noted that the Act of 7ay !, 1910, ! %tat. 30, /3 $.%.*. @ #, reuiresofficers of common carriers by rail to ma)e under oath

age 1# $. %. 113

monthly reports of railroad accidents to the 4nterstate *ommerce *ommission, setting forth the natureand causes of the accidents and the circumstances connected therewith. And the same Act, /3 $.%.*. @/0, gives the *ommission authority to investigate the to ma)e reports upon such accidents. 4t isprovided, however, that

"5either the report reuired by section # of this title nor any report of the investigation provided for insection /0 of this title nor any part thereof shall be admitted as evidence or used for any purpose in anysuit or action for damages growing out of any matter mentioned in said report or investigation."

/3 $.%.*. @ /1. A similar provision, ! %tat. 91!, 3/ %tat. 1/#, /3 $.%.*. @ , bars the use in litigationof reports concerning accidents resulting from the failure of a locomotive boiler or its appurtenances./3 $.%.*. @@ 2, . hat legislation reveals an e'plicit *ongressional policy to rule out reports of

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accidents which certainly have as great a claim to ob8ectivity as the statement sought to be admitted inthe present case. e can hardly suppose that *ongress modified or ualified by implication theselongstanding statutes when it permitted records made "in the regular course" of business to beintroduced. 5or can we assume that *ongress, having e'pressly prohibited the use of the company(sreports on its accidents, impliedly altered that policy when it came to reports by its employees to theirsuperiors. he inference is wholly the other way.

he several hundred years of history behind the Act igmore,su"ra,@@ 131&1320- indicate thenature of the reforms which it was designed to effect. 4t should, of course, be liberally interpreted so asto do away with the anachronistic rules which gave rise to its need and at which it was aimed. Dut"regular course" of business must find its meaning in the inherent nature of the business in uestion andin the methods systematically employed for the conduct of the business as a business.

age 1# $. %. 11!

44. =ne of respondent(s witnesses testified on cross&e'amination that he had given a signed statement toone of respondent(s lawyers. *ounsel for petitioners as)ed to see it. he court ruled that, if he called for

and inspected the document, the door would be opened for respondent to offer the statement inevidence, in which case the court would admit it. See Ed%son Ele&tr%& L%'ht Co. . Un%ted StatesEle&tr%& L%'ht%n' Co.,/3 :. 33, 39. *ounsel for petitioners declined to inspect the statement, and too)an e'ception. etitioners contend that that ruling was reversible error in light of +ule 2!b- and +ule /of the +ules of *ivil rocedure. e do not reach that uestion. %ince the document was not mar)ed foridentification and is not a part of the record, we do not )now what its contents are. 4t is thereforeimpossible, as stated by the court below, to determine whether the statement contained remar)s whichmight serve to impeach the witness. Accordingly, we cannot say that the ruling was pre8udicial even ifwe assume it was erroneous. 7ere "technical errors" which do not "affect the substantial rights of theparties" are not sufficient to set aside a 8ury verdict in an appellate court. /0 %tat. 11#1, 2# $.%.*. @91. Fe who see)s to have a 8udgment set aside because of an erroneous ruling carries the burden ofshowing that pre8udice resulted. hat burden has not been maintained by petitioners.

444. he final uestion presented by this case relates to the burden of proving contributory negligence.As we have noted, two of the causes of action were based on the common law, and two on a7assachusetts statute. he court, without distinguishing between them, charged that petitioners had theburden of proving contributory negligence. o this, petitioners e'cepted, li)ewise withoutdistinguishing between the different causes of action. And again without ma)ing any such distinction,petitioners

age 1# $. %. 11

reuested the court to charge that the burden was on respondent. his was refused, and an e'ceptionnoted.

+espondent contends, in the first place, that the charge was correct because of the fact that +ule #c- ofthe +ules of *ivil rocedure ma)es contributory negligence an affirmative defense. e do not agree.+ule #c- covers only the manner of pleading. he uestion of the burden of establishing contributorynegligence is a uestion of local law which federal courts, in diversity of citienship cases Er%e R. Co.. To("#%ns,0/ $. %. !/-, must apply. C%t%es Ser%&e O%l Co. . Dunla",0# $. %. 20#G Sa("son .Channell,110 :.2d 3/.And see Central )er(ont Ry. Co. . *h%te,2# $. %. 30, 2# $. %. 312.

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%econdly, respondent contends that the courts below applied the rule of conflict of laws which obtainsin 5ew 6or). %o far as the causes of action based on the 7assachusetts statute are concerned, we willnot disturb the holding below that, as a matter of 5ew 6or) conflict of laws which the trial court wasbound to apply +laon Co. . Stentor Co.,1 $. %. /#-, petitioners had the burden of provingcontributory negligence. hat ruling was based onF%t-"atr% . Internat%onal Ry. Co.,232 5.6. 12,1!9 5.;. 112, which involved an action brought in 5ew 6or) under a statute of the rovince of

=ntario. hat statute gave a plaintiff in a negligence action, though guilty of contributory negligence, arecovery if the defendant was more negligent, the damages being proportioned to the degree of faultimputable to the defendant. he 5ew 6or) *ourt of Appeals held that the 5ew 6or) courts were8ustified in applying the =ntario rule, growing out of the statute, that the burden was on the defendantto show contributory negligence. he 7assachusetts statute on which two of the present causes ofaction were founded ma)es a railroad corporation liable for its neglect in giving certain signals. 4tprovides that tort damages for in8uries or death from collisions at crossings may be

age 1# $. %. 11#

recovered where such neglect "contributed" to the in8ury,

"unless it is shown that, in addition to a mere want of ordinary care, the person in8ured . . . was at thetime of the collision, guilty of gross or willful negligence, or was acting in violation of the law, and thatsuch gross or willful negligence or unlawful act contributed to the in8ury."

7ass.>en.?. 192- c. 1!0, @ 22. hat statute, li)e the =ntario statute, creates rights not recognied atcommon law.roo#s . F%t&hbur' ! L.St. Ry.,200 7ass. #, #! 5.;. 2#9GDu''an . ay State StreetRy. Co.,20 7ass. 0, #1, #2, 119 5.;. 3G Sull%an . Hust%s,2 7ass. //1, //!, 10 5.;. 2/GLe$%s . oston ! /a%ne R.,2! 7ass. #, 91, 1!0 5.;. !!. And in actions under it, the burden ofproving contributory negligence is on the defendant./anley . oston ! /a%ne Ra%lroad,139 7ass./9, / 5.;. 931GPhel"s . Ne$ En'land R. Co.,12 7ass. 9#, 31 5.;. 322G/&Donald . Ne$ 0or#C. ! H. R. Co.,1#! 7ass. //, 2 5.;. 33G+enny . oston ! /a%ne Ra%lroad,1## 7ass. 12, /5.;. 09.And see7ass.>en.?. 192- c. 21, @ #3. 7oreover, the measure of damages for death is"the sum of not less than five hundred nor more than ten thousand dollars, to be assessed with referenceto the degree of culpability of the" railroad. 7ass.>en.?. 192- c. 229, @ . e are referred to no 5ew6or) decision involving the point. he propriety of applying the rule of theF%t-"atr%case to thecauses of action based on the 7assachusetts statute may be arguable. Dut it is not the type of rulingunderEr%e R. Co. . To("#%ns, su"ra,which we will readily disturb. here the lower federal courts areapplying local law, we will not set aside their ruling e'cept on a plain showing of error.

he uestion which is raised on the common law counts is more serious. he court below did notdistinguish between the conflict of laws rule in a case li)e the F%t-"atr%case and the rule whichapparently obtains in cases where

age 1# $. %. 119

the foreign cause of action is not founded on such a statute. 4t was intimated in the F%t-"atr%case, 2325.6. p. 13, 1!9 5.;. 112, and stated in other cases in 5ew 6or)(s intermediate appellate courts*r%'ht . Pal(%son,2 App.

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appropriate application of the 5ew 6or) law on the common law counts, for the following reasonH aswe have noted, petitioners, in their e'ceptions to the charge given and in the reuested charge, did notdifferentiate between the causes of action based on the 7assachusetts statute and those on the commonlaw. ;ven if we assume that the charge on the latter was erroneous, we cannot say that the charge wasincorrect so far as the statutory causes of action were concerned. ?i)ewise, we must assume that itwould have been error to give the reuested charge on the statutory causes of action even though we

accept it as the correct charge on the others. $nder these facts, a general e'ception is not sufficient. 4nfairness to the trial court and to the parties, ob8ections to a charge must be sufficiently specific to bringinto focus the precise nature of the alleged error. here a party might have obtained the correct chargeby specifically calling the attention of the trial court to the error, and where part of the charge wascorrect, he may not, through a general e'ception, obtain a new trial. SeeL%n&oln . Cla1l%n, all. 12,/ $. %. 19Geaer . Taylor,9 $. %. /!, 9 $. %. 3/&33G/ob%le ! /. Ry. Co. . 2urey,111 $. %.3#/, 111 $. %. 39!G/&Der(ott . Seere,202 $. %. !00, 202 $. %. !11GNor1ol# ! *. Ry. Co. .Earnest,229 $. %. 11/, 229 $. %. 122GPennsylan%a R. Co. . /%nds,230 $. %. !#,230 $. %. 3.hat longstanding rule of federal practice is as applicable in this

age 1# $. %. 120

type of case as in others. hat rule cannot be avoided here by reason of the reuested charge. :or, as wehave said, it was at most only partially correct, and was not sufficiently discriminating.

A11%r(ed.

B:ootnote 1C

"4n any court of the $nited %tates and in any court established by Act of *ongress, any writing orrecord, whether, in the form of an entry in a boo) or otherwise, made as a memorandum or record ofany act, transaction, occurrence, or event, shall be admissible as evidence of said act, transaction,occurrence, or event, if it shall appear that it was made in the regular course of any business, and that itwas the regular course of such business to ma)e such memorandum or record at the time of such act,transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of thema)ing of such writing or record, including lac) of personal )nowledge by the entrant or ma)er, maybe shown to affect its weight, but they shall not affect its admissibility. he term (business( shall includebusiness, profession, occupation, and calling of every )ind."

B:ootnote 2C

he problem was well stated by Judge ?earned Fand in/assa&husetts ond%n' ! Ins. Co. . Nor$%&hPhar(a&al Co.,1# :.2d 9/, 9H

"he routine of modern affairs, mercantile, financial, and industrial, is conducted with so e'treme adivision of labor that the transactions cannot be proved at first hand without the concurrence ofpersons, each of whom can contribute no more than a slight part, and that part not dependent on hismemory of the event. +ecords, and records alone, are their adeuate repository, and are in practiceaccepted as accurate upon the faith of the routine itself, and of the self&consistency of their contents.$nless they can be used in court without the tas) of calling those who at all stages had a part in thetransactions recorded, nobody need ever pay a debt, if only his creditor does a large enough business."

B:ootnote C

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hus, the report of the %enate *ommittee on the Judiciary incorporates the recommendation of theAttorney >eneral, who stated in support of the legislation,

"he old common law rule reuires that every boo) entry be identified by the person ma)ing it. his ise'ceedingly difficult, if not impossible, in the case of an institution employing a large boo))eepingstaff, particularly when the entries are made by machine. 4n a recent criminal case, the >overnment was

prevented from ma)ing out a"r%(a 1a&%ecase by a ruling that entries in the boo)s of a ban), made inthe regular course of business, were not admissible in evidence unless the specific boo))eeper whomade the entry could identify it. %ince the ban) employed 1# boo))eepers, and the entries were madeby boo))eeping machines, this was impossible."

%.+ep. 5o.19!3, /th *ong., 2d %ess., pp. 1&2.

B:ootnote /C

4t is clear that it does not come within the e'ceptions as to declarations by a deceased witness. SeeShe"ard . Un%ted States,290 $. %. 9!G igmore,su"ra,chs. 'li'&liv.

.*. No. +1-98 /ar% 31, 19

H2 SPUS2S 2*NA2 A'*5CA an S+2$A$ C. A'*5CA, an te H25*S '

$/5NA N,petitioners&appellants,

vs.

CA+26 (PH5+.), 5NC., /A2 7U5*2N an H2 CU* ' APP2A+S,respondents&

appellees.

Ross, Sel"h, Carras&oso and 2anda 1or the res"ondents.

ernabe A1r%&a, et&. 1or the "et%t%oners.

/AA+5NA+.,J.:

his case is before us on a petition for review of the decision of the *ourt of Appeals, which affirmed

that of the *ourt of :irst 4nstance of 7anila dismissing petitioners( second amended complaint against

respondents.

he action is for damages under Articles 1902 and 190 of the old *ivil *ode. 4t appears that in the

afternoon of 7arch 1#, 19/# a fire bro)e out at the *alte' service station at the corner of Antipolo

street and +ial Avenue, 7anila. 4t started while gasoline was being hosed from a tan) truc) into the

underground storage, right at the opening of the receiving tan) where the nole of the hose was

inserted. he fire spread to and burned several neighboring houses, including the personal properties

and effects inside them. heir owners, among them petitioners here, sued respondents *alte' hil.-,

4nc. and 7ateo Douiren, the first as alleged owner of the station and the second as its agent in charge

of operation. 5egligence on the part of both of them was attributed as the cause of the fire.

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for each of respondents on the ground that they were hearsay and that they were "irrelevant, immaterial

and impertinent." 4ndeed, in the court(s resolution only ;'hibits J, L, L&3 and M&! were admitted

$%thout ob3e&t%onG the admission of the others, including the disputed ones, carried no such e'planation.

=n the second point, although

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and the appellate court refused to apply the doctrine in the instant case on the grounds that "as to its-

applicability ... in the hilippines, there seems to he nothing definite," and that while the rules do not

prohibit its adoption in appropriate cases, "in the case at bar, however, we find no practical use for such

doctrine." he uestion deserves more than such summary dismissal. he doctrine has actually been

applied in this 8urisdiction, in the case ofEs"%r%tu s. Ph%l%""%ne Po$er and Deelo"(ent Co. *A&>.+.

5o. 2/0&+, %eptember 20, 19/9-, wherein the decision of the *ourt of Appeals was penned by 7r.

Justice J.D.?. +eyes now a member of the %upreme *ourt.

he facts of that case are stated in the decision as followsH

4n the afternoon of 7ay 3, 19/!, while the plaintiff&appellee and other companions were

loading grass between the municipalities of Day and *alauan, in the province of ?aguna, with

clear weather and without any wind blowing, an electric transmission wire, installed and

maintained by the defendant hilippine ower and

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139 ;ng. +eprint 299, the leading case that established that rule-. *onseuently, in the absence

of contributory negligence which is admittedly not present-, the fact that the wire snapped

suffices to raise a reasonable presumption of negligence in its installation, care and

maintenance. hereafter, as observed by *hief Daron olloc), "if there are any facts

inconsistent with negligence, it is for the defendant to prove."

4t is true of course that decisions of the *ourt of Appeals do not lay down doctrines binding on the

%upreme *ourt, but we do not consider this a reason for not applying the particular doctrine of res %"sa

lo4u%turin the case at bar. >asoline is a highly combustible material, in the storage and sale of which

e'treme care must be ta)en. =n the other hand, fire is not considered a fortuitous event, as it arises

almost invariably from some act of man. A case stri)ingly similar to the one before $s is Jones vs.

%hell etroleum *orporation, et al., 11 %o. //H

Arthur =. Jones is the owner of a building in the city of Fammon which in the year 19/ was

leased to the %hell etroleum *orporation for a gasoline filling station. =n =ctober #, 19/,

during the term of the lease, while gasoline was being transferred from the tan) wagon, also

operated by the %hell etroleum *orporation, to the underground tan) of the station, a fire

started with resulting damages to the building owned by Jones. Alleging that the damages to his

building amounted to 31!.93, Jones sued the %hell etroleum *orporation for the recovery of

that amount. he 8udge of the district court, after hearing the testimony, concluded that plaintiff

was entitled to a recovery and rendered 8udgment in his favor for /2.#2. he *ourt of

Appeals for the :irst *ircuit reversed this 8udgment, on the ground the testimony failed to show

with reasonable certainty any negligence on the part of the %hell etroleum *orporation or any

of its agents or employees. laintiff applied to this *ourt for a rit of +eview which was

granted, and the case is now before us for decision.56$"h75.89t

4n resolving the issue of negligence, the %upreme *ourt of ?ouisiana heldH

laintiff(s petition contains two distinct charges of negligence I one relating to the cause of the

fire and the other relating to the spreading of the gasoline about the filling station.

=ther than an e'pert to assess the damages caused plaintiff(s building by the fire, no witnesses

were placed on the stand by the defendant.

a)ing up plaintiff(s charge of negligence relating to the cause of the fire, we find it established

by the record that the filling station and the tan) truc) were under the control of the defendantand operated by its agents or employees. e further find from the uncontradicted testimony of

plaintiff(s witnesses that fire started in the underground tan) attached to the filling station while

it was being filled from the tan) truc) and while both the tan) and the truc) were in charge of

and being operated by the agents or employees of the defendant, e'tended to the hose and tan)

truc), and was communicated from the burning hose, tan) truc), and escaping gasoline to the

building owned by the plaintiff.

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redicated on these circumstances and the further circumstance of defendant(s failure to e'plain

the cause of the fire or to show its lac) of )nowledge of the cause, plaintiff has evo)ed the

doctrine of res %"sa lo4u%tur. here are many cases in which the doctrine may be successfully

invo)ed and this, we thin), is one of them.

here the thing which caused the in8ury complained of is shown to be under the management

of defendant or his servants and the accident is such as in the ordinary course of things does not

happen if those who have its management or control use proper care, it affords reasonable

evidence, in absence of e'planation by defendant, that the accident arose from want of care. /3

*.J. P!#, p. 119-.

his statement of the rule of res %"sa lo4u%tur has been widely approved and adopted by the

courts of last resort. %ome of the cases in this 8urisdiction in which the doctrine has been applied

are the following, %-.H 7aus v. Droderic), 31 ?a. Ann. 113, 23 %o. 9G Febert v. ?a)e

*harles 4ce, etc., *o., 111 ?a. 322, 3 %o. 1, !/ ?.+.A. 101, 100 Am. %t. +ep. 303G illis v.

Eic)sburg, etc., +. *o., 113 ?a. !, # %o. #92G Dents v. age, 113 ?a. 3!0, 9 %o. 399.

he principle enunciated in the aforeuoted case applies with eual force here. he gasoline station,

with all its appliances, euipment and employees, was under the control of appellees. A fire occurred

therein and spread to and burned the neighboring houses. he persons who )new or could have )nown

how the fire started were appellees and their employees, but they gave no e'planation thereof

whatsoever. 4t is a fair and reasonable inference that the incident happened because of want of care.

4n the report submitted by *aptain ?eoncio 7ariano of the 7anila olice asoline %tation complained of

occupies a lot appro'imately 10 m ' 10 m at the southwest corner of +ial Avenue and

Antipolo. he location is within a very busy business district near the =brero 7ar)et, a railroad

crossing and very thic)ly populated neighborhood where a great number of people mill around t

until

gasoline

tever be theact8vities of these peopleor lighting a cigarette cannot be e'cluded and this

constitute a secondary haard to its operation which in turn endangers the entire neighborhood

to conflagration.

:urthermore, aside from precautions already ta)en by its operator the concrete walls south and

west ad8oining the neighborhood are only 2&1Q2 meters high at most and cannot avoid the

flames from leaping over it in case of fire.

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+ecords show that there have been two cases of fire which caused not only material damages

but desperation and also panic in the neighborhood.

Although the soft drin)s stand had been eliminated, this gasoline service station is also used by

its operator as a garage and repair shop for his fleet of ta'icabs numbering ten or more, adding

another ris) to the possible outbrea) of fire at this already small but crowded gasoline station.

he foregoing report, having been submitted by a police officer in the performance of his duties on the

basis of his own personal observation of the facts reported, may properly be considered as an e'ception

to the hearsay rule. hese facts, descriptive of the location and ob8ective circumstances surrounding the

operation of the gasoline station in uestion, strengthen the presumption of negligence under the

doctrine of res ipsa louitur, since on their face they called for more stringent measures of caution than

those which would satisfy the standard of due diligence under ordinary circumstances. here is no

more elouent demonstration of this than the statement of ?eandro :lores before the police

investigator. :lores was the driver of the gasoline tan) wagon who, alone and without assistance, was

transferring the contents thereof into the underground storage when the fire bro)e out. Fe saidH "Defore

loading the underground tan) there were no people, but while the loading was going on, there were

people who went to drin) coca&cola at the coca&cola stand- which is about a meter from the hole

leading to the underground tan)." Fe added that when the tan) was almost filled he went to the tan)

truc) to close the valve, and while he had his bac) turned to the "manhole" he, heard someone shout

"fire."

;ven then the fire possibly would not have spread to the neighboring houses were it not for another

negligent omission on the part of defendants, namely, their failure to provide a concrete wall high

enough to prevent the flames from leaping over it. As it was the concrete wall was only 2&1Q2 meters

high, and beyond that height it consisted merely of galvanied iron sheets, which would predictablycrumple and melt when sub8ected to intense heat.

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negligence, if such negligence directly and pro'imately cooperates with the independent cause in the

resulting in8ury." 7acAfee, et al. vs. raver(s >as *orporation, 13 %.. 2nd //2.-

he ne't issue is whether *alte' should be held liable for the damages caused to appellants. his issue

depends on whether Douiren was an independent contractor, as held by the *ourt of Appeals, or an

agent of *alte'. his uestion, in the light of the facts not controverted, is one of law and hence may be

passed upon by this *ourt. hese facts areH 1- Douiren made an admission that he was an agent of

*alte'G 2- at the time of the fire *alte' owned the gasoline station and all the euipment thereinG -

*alte' e'ercised control over Douiren in the management of the stateG /- the delivery truc) used in

delivering gasoline to the station had the name of *A?;M painted on itG and 3- the license to store

gasoline at the station was in the name of *alte', which paid the license fees. ;'hibit &AfricaG ;'hibit

$&AfricaG ;'hibit M&3 AfricaG ;'hibit M&! AfricaG ;'hibit 6&Africa-.

4n Douiren(s amended answer to the second amended complaint, he denied that he directed one of his

drivers to remove gasoline from the truc) into the tan) and alleged that the "alleged driver, if one there

was, was not in his employ, the driver being an employee of the *alte' hil.- 4nc. andQor the owners of

the gasoline station." 4t is true that Douiren later on amended his answer, and that among the changes

was one to the effect that he was not acting as agent of *alte'. Dut then again, in his motion to dismiss

appellants( second amended complaint the ground alleged was that it stated no cause of action since

under the allegations thereof he was merely acting as agent of *alte', such that he could not have

incurred personal liability. A motion to dismiss on this ground is deemed to be an admission of the facts

alleged in the complaint.

*alte' admits that it owned the gasoline station as well as the euipment therein, but claims that the

business conducted at the service station in uestion was owned and operated by Douiren. Dut *alte'

did not present any contract with Douiren that would reveal the nature of their relationship at the timeof the fire. here must have been one in e'istence at that time. 4nstead, what was presented was a

license agreement manifestly tailored for purposes of this case, since it was entered into shortly before

the e'piration of the one&year period it was intended to operate. his so&called license agreement

;'hibit 3&*alte'- was e'ecuted on 5ovember 29, 19/#, but made effective as of January 1, 19/# so as

to cover the date of the fire, namely, 7arch 1#, 19/#. his retroactivity provision is uite significant,

and gives rise to the conclusion that it was designed precisely to free *alte' from any responsibility

with respect to the fire, as shown by the clause that *alte' "shall not be liable for any in8ury to person

or property while in the property herein licensed, it being understood and agreed that ?4*;5%;;

Douiren- is not an employee, representative or agent of ?4*;5%=+ *alte'-."

Dut even if the license agreement were to govern, Douiren can hardly be considered an independent

contractor. $nder that agreement Douiren would pay *alte' the purely nominal sum of 1.00 for the

use of the premises and all the euipment therein. Fe could sell only *alte' roducts. 7aintenance of

the station and its euipment was sub8ect to the approval, in other words control, of *alte'. Douiren

could not assign or transfer his rights as licensee without the consent of *alte'. he license agreement

was supposed to be from January 1, 19/# to

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in case Douiren ceased to sell *alte' products, or did not conduct the business with due diligence, in

the 8udgment of *alte'. ermination of the contract was therefore a right granted only to *alte' but not

to Douiren. hese provisions of the contract show the e'tent of the control of *alte' over Douiren.

he control was such that the latter was virtually an employee of the former.

a)ing into consideration the fact that the operator owed his position to the company and the

latter could remove him or terminate his services at willG that the service station belonged to the

company and bore its tradename and the operator sold only the products of the companyG that

the euipment used by the operator belonged to the company and were 8ust loaned to the

operator and the company too) charge of their repair and maintenanceG that an employee of the

company supervised the operator and conducted periodic inspection of the company(s gasoline

and service stationG that the price of the products sold by the operator was fi'ed by the company

and not by the operatorG and that the receipts signed by the operator indicated that he was a

mere agent, the finding of the *ourt of Appeals that the operator was an agent of the company

and not an independent contractor should not be disturbed.

o determine the nature of a contract courts do not have or are not bound to rely upon the name

or title given it by the contracting parties, should thereby a controversy as to what they really

had intended to enter into, but the way the contracting parties do or perform their respective

obligations stipulated or agreed upon may be shown and inuired into, and should such

performance conflict with the name or title given the contract by the parties, the former must

prevail over the latter. %hell *ompany of the hilippines, ?td. vs. :iremens( 4nsurance

*ompany of 5ewar), 5ew Jersey, 100 hil. 3-.

he written contract was apparently drawn for the purpose of creating the apparent relationship

of employer and independent contractor, and of avoiding liability for the negligence of theemployees about the stationG but the company was not satisfied to allow such relationship to

e'ist. he evidence shows that it immediately assumed control, and proceeded to direct the

method by which the wor) contracted for should be performed. Dy reserving the right to

terminate the contract at will, it retained the means of compelling submission to its orders.

Faving elected to assume control and to direct the means and methods by which the wor) has to

be performed, it must be held liable for the negligence of those performing service under its

direction. e thin) the evidence was sufficient to sustain the verdict of the 8ury. >ulf +efining

*ompany v. +ogers, 3 %.. 2d, 1#-.

*alte' further argues that the gasoline stored in the station belonged to Douiren. Dut no cash invoiceswere presented to show that Douiren had bought said gasoline from *alte'. 5either was there a sales

contract to prove the same.

As found by the trial court the Africas sustained a loss of 9,003.#0, after deducting the amount of

2,000.00 collected by them on the insurance of the house. he deduction is now challenged as

erroneous on the ground that Article 220 of the 5ew *ivil *ode, which provides for the subrogation

of the insurer to the rights of the insured, was not yet in effect when the loss too) place. Fowever,

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regardless of the silence of the law on this point at that time, the amount that should be recovered be

measured by the damages actually suffered, otherwise the principle prohibiting un8ust enrichment

would be violated. ith respect to the claim of the heirs of =ng ,300.00 was ad8udged by the lower

court on the basis of the assessed value of the property destroyed, namely, 1,300.00, disregarding the

testimony of one of the =ng children that said property was worth /,000.00. e agree that the court

erred, since it is of common )nowledge that the assessment for ta'ation purposes is not an accurate

gauge of fair mar)et value, and in this case should not prevail over positive evidence of such value. he

heirs of =ng are therefore entitled to 10,000.00.

herefore, the decision appealed from is reversed and respondents&appellees are held liable solidarily

to appellants, and ordered to pay them the aforesaid sum of 9,003.#0 and 10,000.00, respectively,

with interest from the filing of the complaint, and costs.

en'-on, C.2., aut%sta An'elo, Con&e"&%on, Reyes, 2..L., arrera, Re'ala, en'-on, 2.P., :ald%ar

and San&he-, 22., &on&ur.

D%-on, 2., too# no "art.

G.R. No. L-48'&' Se7e#$e% !0, 198&

PEOPLE OF THE PHILIPPINES, plaintiff:appellee,".JOSEPH LEONES 2UCUSIN )*+) JESSIE, een)n7-)e**)n7.

GUERRERO, J.:

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S)n Fe%n)no, L) Un+on, () 8,19'!.

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on A%+* &6, 19'! )7e%

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$ 2 C 5 S 5 N

/N2/A;*, J.:

+obles ransportation *ompany, 4nc., later referred to as the *ompany, is appealing from the decisionof the *ourt of :irst 4nstance of +ial, civil case 5o. 201, ordering it to pay Pla%nt%11s;milio 7analo

and his wife, *lara %alvador, the sum of ,000 with interest at 12 per cent per annum from 5ovember1/, 1932 plus the amount of !00 for attorneyRs fees and e'penses of litigation, with costs.

he facts involved in this case are simple and without dispute. =n August 9, 19/, a ta'icab owned andoperated by De1endantA""ellant*ompany and driven by ;dgardo Fernande its driver, collided witha passenger truc) at araSaue, +ial. 4n the course of and as a result of the accident, the ta'icab ranover Armando 7analo, an eleven year old, causing him physical in8uries which resulted in his deathseveral days later. ;dgardo Fernande was prosecuted for homicide through rec)less imprudence andafter trial was found guilty of the charge and sentenced to one year prision correccional, to indemnifythe heirs of the deceased in the amount of ,000, in case of insolvency to suffer subsidiaryimprisonment, and to pay costs. ;dgardo Fernande served out his sentence but failed to pay theindemnity. wo writs of e'ecution were issued against him to satisfy the amount of the indemnity, but

both writs were returned unsatisfied by the sheriff who certified that no property, real or personal, inFernandeR name could be found.

=n :ebruary 1, 193, Pla%nt%11s;milio 7analo and his wife *lara %alvador, father and motherrespectively of Armando, filed the present action against the *ompany to enforce its subsidiaryliability, pursuant to Articles 102 and 10 of the +evised enal *ode. he *ompany filed itsappearance and answer and later an amended answer with special defenses and counterclaim. 4t alsofiled a motion to dismiss the complaint unless and until the convicted driver Fernande was included asa partyDe1endant, the *ompany considering him an indispensable party. he trial court denied themotion to dismiss, holding that Fernande was not an indispensable partyDe1endant.

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deprived of the opportunity to cross&e'amine said sheriff. A sheriffRs return is an official statementmade by a public official in the performance of a duty specially en8oined by law and forming part ofofficial records, and is prima facie evidence of the facts stated therein. +ule 9, section 11 and +ule12, section 3, +ules of *ourt.- he sheriff ma)ing the return need not testify in court as to the factsstated in his entry. 4n the case of Antillon vs. Darcelon, hil., 131, citing igmore on ;vidence, thiscourt saidHchanroblesvirtuallawlibrary

To the foregoing rules with reference to the method of proving private documents an e'ception ismade with reference to the method of proving public documents e'ecuted before and certified to, underthe hand and seal of certain public officials. he courts and the legislature have recognied the validreason for such an e'ception. he litigation is unlimited in which testimony by officials is daily needed,the occasions in which the officials would be summoned from his ordinary duties to declare as awitness are numberless. he public officers are few in whose daily wor) something is not done inwhich testimony is not needed from official sources. ere there no e'ception to official statements,hosts of officials would be found devoting the greater part of their time to attending as witnesses incourt or delivering their depositions before an officer. he wor) of Administration of government andthe interest of the public having business with officials would ali)e suffer in conseuence.U

And this *ourt addedHchanroblesvirtuallawlibrary

The law reposes a particular confidence in public officers that it presumes they will discharge theirseveral trusts with accuracy and fidelityG chan roblesvirtualawlibraryand, therefore, whatever acts they do in discharge of theirpublic duty may be given in evidence and shall be ta)en to be true under such a degree of caution as thenature and circumstances of each case may appear to reuire.U

heA""ellantalso contends that Articles 102 and 10 of the +evised enal *ode were repealed by the5ew *ivil *ode, promulgated in 1930, particularly, by the repealing clause under which comes Article220 of the said code. e find the contention untenable. Article 21 of the 5ew *ivil *ode e'presslyrecognies civil liabilities arising from negligence under the enal *ode, only that it provides thatPla%nt%11cannot recover damages twice for the same act of omission of theDe1endant.

TA+. 21. +esponsibility for fault or negligence under the preceding article is entirely separate anddistinct from the civil liability arising from negligence under the enal *ode. Dut the Pla%nt%11cannotrecover damages twice for the same act of omission of the De1endant.U

4nvo)ing prescription,A""ellantclaims that the present action is barred by the %tatute of ?imitationsfor the reason that it is an action either upon an in8ury to the rights of the Pla%nt%11, or upon a uasidelict, and that according to Article 11/! of the 5ew *ivil *ode, such action must be instituted withinfour years. e agree with theA""elleethat the present action is based upon a 8udgment, namely, that inthe criminal case, finding Fernande guilty of homicide through rec)less imprudence and sentencinghim to indemnify the heirs of the deceased in the sum of ,000, and, conseuently may be institutedwithin ten years.

As regards the other errors assigned by A""ellant, we find it unnecessary to discuss and rule uponthem.

:inding the decision appealed from to be in accordance with law, the same is hereby affirmed, withcosts.

Para:, C.J., eng

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THE PEOPLE OF THE PHILIPPINES, plaintiff:appellee,

vs.

(O2ESTO CAUANG FLORES, NAR2O (ATAANG SALA2OR, JOHN 2OE )n RICHAR2 2OE, defendants:appellants.

!$e Solicitor General for plaintiffappellee.

Carlito +. Soriano for accusedappellant.

FELICIANO, J.:

$ccused Modesto Cabuang and 7ardo Matabang appeal from the 8udgment of the Regional Trial Court, 4ranch /A of 2an Carlos City, )angasinan

finding them guilty of robbery with rape and homicide, and imposing upon each of them a prison term of reclusion perpetua. They were also ordered to

pay, 8ointly and severally, to the mother of the victim an indemnity of )/,.G the sum of )=. as the amount of money taken by the accused

from the victimG the amount of )*,. as moral damagesG the sum of )=@,=/. as funeral e9pensesG and the costs of the suit .

The facts as found by the trial court may be summari(ed as follows.

0n *= 0ctober *--, at around ** o3clock at night, #velyn ;e &era and her cousin Maria &ictoria )arana, both * years of age, having come from a

house of a common friend, one Mia Colisao, were walking home along an uninhabited place in 4arangay 4uenlag I of 4ayambang, )angasinan.

2uddenly, from out of the rice paddies along the road, Modesto Cabuang emerged with a flashlight and asked them where they were going. #velyn

became very an9ious and started walking faster. ?pon the other hand, Maria &ictoria started talking to Modesto. 1hen #velyn was about ten !*" feet

ahead of the two, she looked back and saw Modesto turn and shift his flashlight to the rear, illuminating the figure of 7ardo Matabang, who had also

suddenly appeared behind them from the rice fields alongside the road. Modesto then put off and pocketed his flashlight, grabbed Maria &ictoria and

covered her mouth. 7ardo Matabang in turn pursued #velyn, who had started to run away. 2he ran and ran until she entered the yard of a house

along the road and hid in the shadows of the plants and shrubs inside the yard where she could not seen by 7ardo, but from where she could see

him. $fter some time, having lost sight of #velyn, 7ardo went back and re8oined Modesto.

2ometime later, #velyn from her hiding place saw a tricycle pass by with her cousin Maria &ictoria, and Modesto Cabuang, 7ardo Matabang, the

tricycle driver and another person who was seated at the back of the tricycle. #velyn heard her cousin crying and pleading for help. $fter the tricycle

had passed by, #velyn emerged from her hiding place and proceeded to the house of her sister. There she was scolded by her sister for coming home

late. #velyn, confused by the scolding and frightened by what she had 8ust seen and e9perienced, was not able to tell her sister what had 8ust

occurred. 2he stayed in the sala and there tried to go to sleep, without success.

The following morning, Maria &ictoria was found dead along the road, naked, with stab wounds in different parts of her body including the pubic area.

In the course of their investigation, the police interrogated #velyn de &era. #velyn e9ecuted a sworn statement where she identified two !+" of thesuspects as Modesto Cabuang and 7ardo Matabang. 2he stated that she could readily identify them because the latter were her barangay mates and

hence knew them well. Moreover, when Modesto Cabuang suddenly emerged from the rice paddies, he was only about two !+" meters away from her.

7ardo Matabang was clearly seen by #velyn from behind the plants in the yard where she crouched in concealment, there being lights illuminating the

road in front of the yard.1ater, #velyn was again able positively to identify and point out Cabuang and Matabang from

a police line:up. 6owever, the two !+" other suspects, i.e., the tricycle driver and the person who rode at the rear

of the tricycle remained unknown and at large.

0n *A 0ctober *--, the third day after the tragic night, the police found a book !Baboratory Manual in 0rganic

ChemistryB" and some articles of feminine underwear and other personal belongings of a woman scattered some

/ to * meters away from where they had first found Maria &ictoria3s body. #velyn viewed these belongings

and identified them as owned by her cousin Maria &ictoria who was a student at the )hilippine 1omen3s

?niversity !)1?". #9amination of the personal belongings so found also showed that cash in the amount of

)=., in Maria &ictoria3s possession the night before, was missing.

;r. 7ario Ferrer, a physician resident in 4ayambang, )angasinan, conducted an autopsy on the body of the

victim. 6e rendered an autopsy report which show the following findings5

Incised wound, =. cm superficial, antero:lateral aspect neck !R"G

Contusion hematoma, * 9 * cm. mid clavicular area !"G

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2tab wound, *./ cm. /th IC2, parasternal line !", penetrating, perforating the heart at the

ventricular level, lacerating the lingular part of the !" lungG

6ematoma, mediastinumG

6emopericardium, ccG

6emothora9 !" + litersG

2tab wound, *./ cm. Ath IC2, para:vertebral line !R", penetrating and lacerating the posterior

basal part of !R" lungG

6emothora9 !R" * literG

Incised wound, . cm. + points, parallel to each other, mons pubisG

Incised wound, . cm. posterior fourchet of the vagina, transecting the perineum down to the

anal canalG

&agina with blood clots with fecaloid materialG

6ymen carunculated.

The report also noted the stab wounds in the pubic region including the area between the vagina and the anal

canal, as well as the presence of lacerations and spermato(oa in the victim3s vagina, indicating that Maria

&ictoria had been raped and mutilated. ;r. Ferrer identified four !=" of the wounds as mortal in character, which

wounds were produced by a sharp edge and a pointed ob8ect. The cause of the death was listed as

Bhypovolemic shockB resulting from severe decrease in the volume of blood supply, producing death about si9 !@"

hours before the autopsy.&

0n the basis of the foregoing evidence, and primarily on #velyn de &era3s sworn statement which she later

repeated in substantially identical terms before the trial court, Modesto Cabuang and 7ardo Matabang were

convicted of the crime of robbery with rape and homicide.

In the present appeal, appellants principally urge that the trial court had erred in finding that prosecution witness

#velyn de &era had positively identified Modesto Cabuang and 7ardo Matabang as the assailants of Maria

&ictoria. $ppellants point to the entry in the 4ayambang police blotter found on page =-, #ntry 7o. ==@,

&olume I&, 2eries of -@ !#9hibit BIB" which stated that the assailants were Bstill unidentifiedB although the entry

was made after prosecution witness #velyn de &era was

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the men she had seen the night before and who she believed were responsible for the rape and death of her

cousin Maria &ictoria.

The failure of #velyn to specify the accused:appellants as the doers of the horrific rape, killing and robbery of

Maria &ictoria the first time she was

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the course of the police investigation and presented in court. 1!In the case at bar, we conclude that prosecution

witness #velyn de &era did positively and clearly identify Modesto Cabuang and 7ardo Matabang as among

those who had raped and killed and robbed the hapless Maria &ictoria )arana.

$ppellants also set up the defenses of denial and alibi. Cabuang denied having had anything to do with the rape

and killing of Mari &ictoria. 6e said that he was at the wake of the daughter of one 4en %uinio of 4arangay

4uenlag I, the whole night of *= 0ctober *-- and until @5 in the morning of the following day. Cabuang was,

however, unable to offer any details in elaboration or corroboration of his claim of alibi. Matabang, for his part,

testified that on *= 0ctober *--, he was in his house in Haranglaan, ;agupan City, with his wife, his sister:in:

law, and his child and had never left his house. 6e testified further that he left his home for 4ayambang only on

the ne9t day */ 0ctober *--. 6is testimony was, however, found by the trial court to be flawed by

discrepancies and inconsistencies and by lack of sufficient corroboration.

The firmly settled doctrine is that the defense of alibi cannot prosper, unless the accused is able to prove that he

was at some other place during the commission of the crime and that it was impossible for him to have been at

the scene of the crime at the time of its commission.14Clearly, neither of the appellants was able to do so in the

case at bar. Modesto Cabuang was supposedly attending the wake held in the sa"e barangay where Maria

&ictoria was ravished and killed and robbed. 7ardo Matabang, upon the other hand, was allegedly at home in a

town no more than an hour or so by bus from 4ayambang.

It is e

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. #arly the ne9t morning, on */ 0ctober *--, the body of Mario &ictoria was found in the

barangay traversed by the road on which Maria &ictoria were walking the night before.

=. The claims of alibi by Cabuang and Matabang were not successfully established. Cabuang

acknowledged that he was in the same barangay where Maria &ictoria had been assaulted and

killed, while Matabang asserted that he was in his house in ;agupan City which was no more

than an hour or so by bus from the scene of the crime. 7either Cabuang nor Matabang offered

and presented independent and reliable corroboration of their presence far away from the scene

of the crime at the time of occurrence of the crime.

The trial court found the circumstances, considered together, as ade

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which the assailants ran towards the highway leaving onog behind on the ground. Fe was then

brought to 7ary Johnston Fospital where he was pronounced dead on arrival.

. *enido, 7edico&?egal =fficer of the estern olice

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evidentiary value when weighed against the positive assertion of the prosecution witnesses that the

accused was the assailant of Jaime onog.

uite interestingly, the accused did not offer any information regarding the person and circumstances

of "7ando." $p to this date "7ando" remains a myth. 5ot a single witness was presented by the

defense to prove who "7ando" was, nor even a hint of his personal circumstances. onales arrived at the crime scene only after the victim was brought to

the hospital and that she even inuired from him about what happened.

Again we are not persuaded. he statement contradicts the earlier version of the accused that >onales

was pre8udiced against him as he owed her some money. :or, granting that >onales had a grudge

against him it was not li)ely that she would inuire from him about the incident as there were other

persons then present who could shed light on the startling occurrence.

;ually dubious is the avowal of the accused that >onales arrived at the crime scene only after the

victim was rushed to the hospital considering that the incident too) place 8ust in front of her store.

Desides, this claim was easily demolished by >onales( detailed account of the fight.

he fact that the witnesses did not immediately report the incident to the police does not necessarily

discredit them. After all, reports were made albeit by different persons. he accused ban)s on the

apparent inconsistency as to why >onales failed to give immediately her account of the )illing to the

authorities. Dut the discrepancy is so minor that it cannot undermine her credibility nor detract from the

truth that she personally witnessed the incident and positively identified the accused.

he accused leans heavily on theAdan&e In1or(at%on Sheet!prepared by at. %teve *asimiro which

did not mention him at all and named only "+amon

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arenthetically, theAdan&e In1or(at%on Sheetwas prepared by the police officer only after

interviewing *amba, an alleged eyewitness. he accused then could have compelled the attendance of

*amba as a witness. he failure to e'ert the slightest effort to present *amba on the part of the accused

should militate against his cause.

;ntries in official records made in the performance of his duty by a public officer or by a person in the

performance of a duty specially en8oined by law are"r%(a 1a&%eevidence of the facts therein stated.9

Dut to be admissible in evidence three - reuisites must concurH a- he entry was made by a police

officer or by another person specially en8oined by law to do soG b- 4t was made by the public officer in

the performance of his duties or by such other person in the performance of a duty specially en8oined

by lawG and, c- he public officer or other person had sufficient )nowledge of the facts by him stated,

which must have been acuired by him personally or through official information. 10

heAdan&e In1or(at%on Sheetdoes not constitute an e'ception to the hearsay rule, hence,

inadmissible. he public officer who prepared the document had no sufficient and personal )nowledge

of the stabbing incident. Any information possessed by him was acuired from *amba which therefore

could not be categoried as official information because in order to be classified as such the persons

who made the statements not only must have personal )nowledge of the facts stated but must have the

duty to give such statements for the record. 114n the case of *amba, he was not legally so obliged to

give such statements.

he accused enumerates discrepancies in the testimonies of the prosecution witnes