MANUEL DE GUIA vs . MANILA ELECTIC RAILROAD & LIGHT CO.

FIRST DIVISION

[G.R. No. 14335. January 28, 1920.]

MANUEL DE GUIA, plaintiff-appellant, vs. THE MANILA ELECTIC

RAILROAD & LIGHT COMPANY, defendant-appellant.

Sumulong & Estrada, Crossfield & O'Brien and Francisco A. Delgado for
plaintiff-appellant.

Lawrence & Ross for defendant-appellant.

SYLLABUS

1. CONTRACTS; NEGLIGENT PERFORMANCE; POWER OF COURT TO

MODERATE LIABILITY. — In determining the extent of liability for losses or
damages resulting from negligence in the fulfillment of a contractual obligation
the courts have a discretionary power to moderate liability according to the
circumstances.
2. CARRIERS; CARRIAGE OF PASSENGERS FOR HIRE; CONTRACTUAL
OBLIGATION OF CARRIER. — The obligation assumed by a street-railway
company, engaged in the transportation of passengers for hire, towards a person
who embarks for conveyance in one of its coaches, is of a contractual nature; and
the company is bound to convey its passengers safely and securely with
reference to the degree of care required by law and custom applicable to the
case.
3. ID., ID.; ID.; LIABILITY OF CARRIER FOR NEGLIGENCE OF EMPLOYEE.
— Upon failure to comply with this obligation the carrier incurs the liability
commonly incident to the breach of contractual obligations; and where the
delinquency is due to the negligence if its employee, the carrier cannot avail
itself of the defense that it had exercised due care in the selection and instruction
of such employee and that he was in fact an experienced and reliable servant.
4. ID.; ID.; ID.; EXTENT OF CARRIER S LIABILITY FOR LOSSES AND
DAMAGES; GOOD FAITH. — A street-railway company which has exercised due
care in the selection and instruction of the motorman upon one of its cars should
be considered a debtor in good faith as regards liability towards a passenger who
is injured by the negligence of the motorman in directing the car; and the liability
of the carrier to the injured party extends to such losses and damages only as
could be reasonably foreseen as a probable consequence of the physical injuries
inflicted upon the passenger and which are in fact a necessary result of those
injuries.
5. PHYSICAL INJURIES; DAMAGES; EXPENSES OF MEDICAL SERVICE. —
A person who is entitled to recover expenses of cure as an item of damage in a
 civil action for physical injuries cannot recover doctor's bills for services
gratuitously rendered; and the claim must furthermore be limited to medical
services reasonably suited to the case. Charges of professional experts retained
merely with a view to promote the success of the action for damages should not
be allowed.

DECISION

STREET, J :p

This is an appeal prosecuted both by the plaintiff and the defendant from a
judgment of the Court of First Instance of the City of Manila, whereby the
plaintiff was awarded the sum of P6,100, with interest and costs, as damages
incurred by him in consequence of physical injuries sustained while riding on one
of the defendant's car.
The accident which gave rise to the litigation occurred on September 4,
1915, near the end of the street-car line in Caloocan, Rizal, a northern suburb of
the city of Manila. It appears that, at about 8 o'clock p. m., of the date
mentioned, the plaintiff Manuel de Guia, a physician residing in Caloocan,
boarded a car at the end of the line with the intention of coming to the city. At
about 30 meters from the starting point the car entered a switch, the plaintiff
remaining on the back platform holding the handle of the right-hand door. Upon
coming out of the switch, the small wheels of the rear truck left the track, ran for
a short distance along the macadam filling, which was flush with the rails, and
struck a concrete post at the left of the track. The post was shattered; and as the
car stopped the plaintiff was thrown against the door with some violence,
receiving bruises and possibly certain internal injuries, the extent of which is a
subject of dispute.
The trial court found that the motorman of the derailed car was negligent
in having maintained too rapid a speed. This inference appears to be based
chiefly upon the results of the shock, involving the shattering of the post and the
bending of the kingpost of the car. It is insisted for the defendant company that
the derailment was due to the presence of a stone, somewhat larger than a
goose egg, which had become accidentally lodged between the rails at the
juncture of the switch and which was unobserved by the motorman. In this view
the derailment of the car is supposed to be due to casus fortuitos and not
chargeable to the negligence of the motorman.
Even supposing that the derailment of the car was due to the accidental
presence of such a stone as suggested, we do not think that the existence of
negligence is disproved. The motorman says that upon approaching the switch he
reduced the electrical energy to the point that the car barely entered the switch
under its own momentum, and this operation was repeated as he passed out.
Upon getting again on the straight track he put the control successively at points
one, two, three and lastly at point four. At the moment when the control was
placed at point four he perceived that the rear wheels were derailed and applied
the brake; but at the same instant the car struck the post, some 40 meters
distant from the exit of the switch. One of the defendant's witnesses stated in
court that the rate of a car propelled by electricity with the control at point "four"
should be about five or 6 miles per hour. There was some other evidence to the
effect that the car was behind schedule time and that it was being driven, after
leaving the switch, at a higher I ate than would ordinarily be indicated by the
control at point four. This inference is rendered more tenable by the circumstance
that the car was practically empty. On the whole, we are of the opinion that the
finding of negligence in the operation of the car must be sustained, as not being
clearly contrary to the evidence; not so much because of excessive speed as
because of the distance which the car was allowed to run with the front wheels
of the rear truck derailed. It seems to us that an experienced and attentive
motorman should have discovered that something was wrong and would have
stopped before he had driven the car over the entire distance from the point
where the wheels left the track to the place where the post was struck.
The conclusion being accepted that there was negligence on the part of the
motorman in driving the car, it results that the company is liable for the damage
resulting to the plaintiff as a consequence of that negligence. The plaintiff had
boarded the car as a passenger for the city of Manila and the company undertook
to convey him for hire. The relation between the parties was, therefore, of a
contractual nature, and the duty of the carrier is to be determined with reference
to the principles of contract law, that is, the company was bound to convey and
deliver the plaintiff safely and securely with reference to the degree of care
which, under the circumstances, is required by law and custom applicable to the
case (art. 1258, Civil Code). Upon failure to comply with that obligation the
company incurred the liability defined in articles 1103-1107 of the Civil Code.
(Cangco vs. Manila Railroad Company, 38 Phil. Rep., 768; Manila Railroad
Company vs. Compañia Trasatlantica, and Atlantic, Gulf & Pacific Co., 38 Phil.
Rep., 875.)
From the nature of the liability thus incurred, it is clear that the defendant
company can not avail itself of the last paragraph of article 1903 of the Civil
Code, since that provision has reference to liability incurred by negligence in the
absence of contractual relation, that is, to the culpa aquiliana of the civil law. It
was therefore irrelevant for the defendant company to prove, as it did, that the
company had exercised due care in the selection and instruction of the
motorman who was in charge of its car and that he was in fact an experienced
and reliable servant.
At this point, however, it should be observed that although in case like this
the defendant must answer for the consequences of the negligence of its
employee, the court has the power to moderate liability according to the
circumstances of the case (art. 1103, Civ. Code) . Furthermore, we think it
obvious that an employer who has in fact displayed due diligence in choosing and
instructing his servants is entitled to be considered a debtor in good faith, within
the meaning of article 1107 of the same Code. Construing these two provisions
together, and applying them to the facts of this case, it results that the
defendant's liability is limited to such damages as might, at the time of the
accident, have been reasonably foreseen as a probable consequence of the
physical injuries inflicted upon the plaintiff and which were in fact a necessary
result of those injuries. There is nothing novel in this proposition, since both the
civil and the common law are agreed upon the point that the damages ordinarily
recoverable for the breach of a contractual obligation, against a person who has
acted in good faith, are such as can reasonably be foreseen at the time the
obligation is contracted. In Daywalt vs. Corporacion de PP. Agustinos Recoletos
(39 Phil., 687), we said: "The extent of the liability for the breach of a contract
must be determined in the light of the situation in existence at the time the
contract is made; and the damages ordinarily recoverable are in all events
limited to such as might be reasonably foreseen in the light of the facts then
known to the contracting parties."
This brings us to consider the amount which may be awarded to the
plaintiff as damages. Upon this point the trial judge found that, as a result of the
physical and nervous derangement resulting from the accident, Dr. De Guia was
unable properly to attend to his professional labors for three months and
suspended his practice for that period. It was also proved by the testimony of the
plaintiff that his customary income, as a physician, was about P300 per month.
The trial judge accordingly allowed P900, as damages for loss of professional
earnings. This allowance is attacked upon appeal by the defendant as excessive
both as to the period and rate of allowance. Upon examining the evidence we fell
disinclined to disturb this part of the judgment, though it must be conceded that
the estimate of the trial judge on this point was liberal enough to the plaintiff.

Another item allowed by the trial judge consists of P3,900, which the
plaintiff is supposed to have lost by reason of his inability to accept a position as
district health officer in Occidental Negros. It appears in this connection that Mr.
Alunan, representative from Occidental Negros, had asked Dr. Montinola, who
supposedly had the authority to make the appointment, to nominate the plaintiff
to such position. The job was supposed to be good for two years, with a salary of
P1,600 per annum, and possibility of outside practice worth P350. Accepting
these suggestions as true, it is evident that the damages thus incurred are too
speculative to be the basis of recovery in a civil action. This element of damages
must therefore be eliminated. It goes without saying that damage of this
character could not, at. the time of the accident, have been foreseen by the
delinquent party as a probable consequence of the injury inflicted — a
circumstance which makes applicable article 1107 of the Civil Code, as already
expounded.
The last element of damages to be considered is the item of the plaintiff's
doctor's bills, a subject which we momentarily pass for discussion further on,
since the controversy on this point can be more readily understood in connection
with the question raised by the plaintiff's appeal.
The plaintiff alleges in the complaint that the damages incurred by him as a
result of the injuries in question ascend to the amount of P40,000. Of this
amount the sum of P10,000 is supposed to represent the cost of medical
treatment and other expenses incident to the plaintiff's cure, while the
remainder (P30,000) represents the damage resulting from the character of his
injuries, which are supposedly such as to incapacitate him for the exercise of the
medical profession in the future. In support of these claims the plaintiff
introduced evidence, consisting of his own testimony and that of numerous
medical experts, tending to show that as a result of the injuries in question he
had developed infarct of the liver and traumatic neurosis, accompanied by
nervousness, vertigo, and other disturbing symptoms of a serious and permanent
character, it being claimed that these manifestations of disorder rendered him
liable to a host of other dangerous diseases, such as pleuresy, tuberculosis,
pneumonia, and pulmonary gangrene, and that restoration to health could only
be accomplished, if at all, after long years of complete repose. The trial judge did
not take these pretensions very seriously, and, as already stated, limited the
damages to the three items of professional earnings, expenses of medical
treatment, and the loss of the appointment as medical inspector in Occidental
Negros. As the appeal of the plaintiff opens the whole case upon the question of
damages, it is desirable to present a somewhat fuller statement than that
already given with respect to extent and character of the injuries in question.
The plaintiff testified that, at the time the car struck against the concrete
post, he was standing on the rear platform, grasping the handle of the right-hand
door. The shock of the impact threw him forward, and the left part of his chest
struck against the door causing him to fall. In falling, the plaintiff says, his head
struck one of the seats and he became unconscious. He was presently taken to
his home which was only a short distance away, where he was seen at about 10
o'clock p. m., by a physician in the employment of the defendant company. This
physician says that the plaintiff was then walking about and apparently suffering
somewhat from bruises on his chest. He said nothing about his head being
injured and refused to go to a hospital. Later, during the same night Dr. Carmelo
Basa was called in to see the plaintiff. This physician says that he found Doctor
De Guia lying in bed and complaining of a severe pain in the side. During the visit
of Doctor Basa the plaintiff several times spit up blood, a manifestation no doubt
due to the effects of the bruises received in his side. The next day Doctor De Guia
went into Manila to consult another physician, Doctor Miciano, and during the
course of a few weeks he called into consultation other doctors who were
introduced as witnesses in his behalf at the trial of this case. According to the
testimony of these witnesses, as well as that of the plaintiff himself, the
symptoms of physical and nervous derangement in the plaintiff speedily
developed in portentous degree.
Other experts were introduced by the defendant whose testimony tended
to show that the plaintiff's injuries, considered in their physical effects, were
trivial and that the attendant nervous derangement, with its complicated train of
ailments, was merely simulated.
Upon this question the opposing medical experts ventilated a considerable
mass of professional learning with reference to the nature and effects of the
baffling disease known as traumatic neurosis, or traumatic hysteria — a topic
which has been the occasion of much controversy in actions of this character in
the tribunals of Europe and America. The subject is one of considerable interest
from a medico-legal point of view, but we deem it unnecessary in this opinion to
enter upon a discussion of its voluminous literature. It is enough to say that in
our opinion the plaintiff's case for large damages in respect to his supposed
incapacitation for future professional practice is not made out. Of course in this
jurisdiction damages can not be assessed in favor of the plaintiff as compensation
for the physical or mental pain which he may have endured (Marcelo vs. Velasco,
11 Phil. Rep., 287); and the evidence relating to the injuries, both external and
internal, received by him must be examined chiefly in its bearing upon his
material welfare, that is, in its results upon his earning capacity and the
expenses incurred in restoration to the usual condition of health.
The evidence before us shows that immediately after the accident in
question Doctor De Guia, sensing in the situation a possibility of profit, devoted
himself with great assiduity to the promotion of this litigation; and with the aid
of his own professional knowledge, supplemented by suggestions obtained from
his professional friends and associates, he enveloped himself more or less
unconsciously in an atmosphere of delusion which rendered him incapable of
appreciating at their true value the symptoms of disorder which he developed.
The trial court was in our opinion fully justified in rejecting the exaggerated
estimate of damages thus created.
We now pass to the consideration of the amount allowed to the plaintiff by
the trial judge as the expenses incurred for medical service. In this connection
Doctor Montes testified that he was first called to see the plaintiff upon
September 14, 1915, when he found him suffering from traumatic neurosis.
Three months later he was called upon to treat the same patient for an acute
catarrhal condition, involving disturbance in the pulmonary region. The
treatment for this malady was successful after two months, but at the end of six
months the same trouble recurred and required further treatment. In October of
the year 1916, or more than a year after the accident in question occurred,
Doctor Montes was called in consultation with Doctor Guerrero to make an
examination of the plaintiff. Doctor Montes says that his charges altogether for
services rendered to the plaintiff amount to P350, of which the sum of P200 had
been paid by the plaintiff upon bills rendered from time to time. This physician
speaks in the most general terms with respect to the times and extent of the
services rendered; and it is by no means clear that those services which were
rendered many months, or year, after the accident had in fact any necessary or
legitimate relation to the injuries received by the plaintiff. In view of the
vagueness and uncertainty of the testimony relating to Doctor Montes's services
we are of the opinion that the sum of P200, or the amount actually paid to him
by the plaintiff, represents the extent of the plaintiff's obligation with respect to
treatment for said injuries.
With regard to the obligation supposedly incurred by the plaintiff to three
other physicians, we are of the opinion that they are not a proper subject of
recovery in this action; and this for more than one reason. In the first place, it
does not appear that said physicians have in fact made charges for those services
with the intention of imposing obligations on the plaintiff to pay for them. On the
contrary it would seem that said services were gratuitously rendered out of
courtesy to the plaintiff as a member of the medical profession. The suggestions
made on the stand by these physicians to the effect that their services were
worth the amounts stated by them are not sufficient to prove that the plaintiff
had incurred the obligation to pay those amounts. In the second place, we are
convinced that in employing so many physicians the plaintiff must have bad in
view the successful promotion of the issue of this lawsuit rather than the bona
fide purpose of effecting the cure of his injuries. In order to constitute a proper
element of recovery in an action of this character, the medical service for which
reimbursement is claimed should not only be such as to have created a legal
obligation upon the plaintiff but such as was reasonably necessary in view of his
actual condition. It can not be permitted that a litigant should retain an unusual
and unnecessary number of professional experts with a view to the successful
promotion of a lawsuit and expect to recover against his adversary the entire
expense thus incurred. His claim for medical services must be limited to such
expenditures as were reasonably suited to the case.
The second error assigned in the brief of the defendant company presents a
question of practice which, though not vital to the solution of this case, is of
sufficient general importance to merit notice. It appears that four of the
physicians examined as witnesses for the plaintiff had made written statements
at various dates certifying the results of their respective examinations into the
condition of the plaintiff. When these witnesses were examined in court they
identified their respective signatures to these certificates and the trial judge, over
the defendant's objection, admitted the documents as primary evidence in the
case. This was undoubtedly erroneous. A document of this character is not
primary evidence in any sense, since it is fundamentally of a hearsay nature; and
the only legitimate use to which one of these certificates could be put, as
evidence for the plaintiff, was to allow the physician who issued it to refer
thereto to refresh his memory upon details which he might have forgotten. In
Zw angizer vs. Newman (83 N. Y. Supp., 1071) which was also an action to
recover damages for personal injury, it appeared that a physician, who had been
sent by one of the parties to examine the plaintiff had made at the time a
written memorandum of the results of the examination; and it was proposed to
introduce this document in evidence at the trial. It was excluded by the trial
judge, and it was held upon appeal that this was proper. Said the court: "There
was no failure or exhaustion of the memory, and no impeachment of the
memorandum on cross- examination; and the document was clearly incompetent
as evidence in chief."

It results from the foregoing that the judgment appealed from must be
modified by reducing the amount of the recovery to eleven hundred pesos
(P1,100), with legal interest from November 8, 1916. As thus modified the
judgment is affirmed, without any special pronouncement as to costs of this
instance. So ordered.
Arellano, C. J., Torres, Araullo, Malcolm and Avanceña, JJ., concur.