FIRST DIVISION

[G.R. No. 137873. April 20, 2001]

D.M. CONSUNJI, INC., petitioner, vs. COURT OF APPEALS and MARIA J.

JUEGO, respondents.
DECISION
KAPUNAN, J.:

At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D.M. Consunji,
Inc., fell 14 floors from the Renaissance Tower, Pasig City to his death.
PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a
report dated November 25, 1990, stating that:
x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where he
was pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at around
2:15 p.m. of the same date.
Investigation disclosed that at the given time, date and place, while victim Jose A. Juego together
with Jessie Jaluag and Delso Destajo [were] performing their work as carpenter[s] at the elevator
core of the 14th floor of the Tower D, Renaissance Tower Building on board a [p]latform made of
channel beam (steel) measuring 4.8 meters by 2 meters wide with pinulid plywood flooring and
cable wires attached to its four corners and hooked at the 5 ton chain block, when suddenly, the bolt
or pin which was merely inserted to connect the chain block with the [p]latform, got loose xxx
causing the whole [p]latform assembly and the victim to fall down to the basement of the elevator
core, Tower D of the building under construction thereby crushing the victim to death, save his two
(2) companions who luckily jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then on
board and performing work, fell. And the falling of the [p]latform was due to the removal or getting
loose of the pin which was merely inserted to the connecting points of the chain block and
[p]latform but without a safety lock.[1]
On May 9, 1991, Jose Juegos widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a
complaint for damages against the deceaseds employer, D.M. Consunji, Inc. The employer raised,
among other defenses, the widows prior availment of the benefits from the State Insurance Fund.
After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive
portion of the RTC decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:

1. P50,000.00 for the death of Jose A. Juego.

2. P10,000.00 as actual and compensatory damages.
3. P464,000.00 for the loss of Jose A. Juegos earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorneys fees, plus the costs of suit.
SO ORDERED.[2]
On appeal by D.M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in
toto.
D.M. Consunji now seeks the reversal of the CA decision on the following grounds:
THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS ADMISSIBLE
EVIDENCE OF THE ALLEGED NEGLIGENCE OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA
LOQUITOR [sic] IS APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED NEGLIGENT
UNDER ARTICLE 2180 OF THE CIVIL CODE, AND
THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT PRECLUDED FROM
RECOVERING DAMAGES UNDER THE CIVIL CODE.[3]

Petitioner maintains that the police report reproduced above is hearsay and, therefore,
inadmissible. The CA ruled otherwise. It held that said report, being an entry in official records, is
an exception to the hearsay rule.
The Rules of Court provide that a witness can testify only to those facts which he knows of his
personal knowledge, that is, which are derived from his perception. [4] A witness, therefore, may not
testify as what he merely learned from others either because he was told or read or heard the
same. Such testimony is considered hearsay and may not be received as proof of the truth of what
he has learned.[5] This is known as the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements. [6]
The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of
error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be
best brought to light and exposed by the test of cross-examination. [7] The hearsay rule, therefore,
excludes evidence that cannot be tested by cross-examination. [8]

The Rules of Court allow several exceptions to the rule, [9] among which are entries in official
records. Section 44, Rule 130 provides:
Entries in official records made in the performance of his duty made in the performance of his duty
by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined
by law are prima facie evidence of the facts therein stated.
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,[10] this Court, citing the work of Chief Justice
Moran, enumerated the requisites for admissibility under the above rule:
(a) that the entry was made by a public officer or by another person specially enjoined by law to do so;
(b) that it was made by the public officer in the performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; and
(c) that the public officer or other person had sufficient knowledge of the facts by him stated, which must have
been acquired by him personally or through official information.

The CA held that the police report meets all these requisites. Petitioner contends that the last
requisite is not present.
The Court notes that PO3 Villanueva, who signed the report in question, also testified before
the trial court. In Rodriguez vs. Court of Appeals,[11] which involved a Fire Investigation Report, the
officer who signed the fire report also testified before the trial court. This Court held that the report
was inadmissible for the purpose of proving the truth of the statements contained in the report but
admissible insofar as it constitutes part of the testimony of the officer who executed the report.
x x x. Since Major Enriquez himself took the witness stand and was available for crossexamination, the portions of the report which were of his personal knowledge or which consisted of
his perceptions and conclusions were not hearsay. The rest of the report, such as the summary of the
statements of the parties based on their sworn statements (which were annexed to the Report) as
well as the latter, having been included in the first purpose of the offer [as part of the testimony of
Major Enriquez], may then be considered as independently relevant statements which were
gathered in the course of the investigation and may thus be admitted as such, but not necessarily to
prove the truth thereof. It has been said that:
Where regardless of the truth or falsity of a statement, the fact that it has been made is relevant, the
hearsay rule does not apply, but the statement may be shown. Evidence as to the making of such
statement is not secondary but primary, for the statement itself may constitute a fact in issue, or be
circumstantially relevant as to the existence of such a fact.
When Major Enriquez took the witness stand, testified for petitioners on his Report and made
himself available for cross-examination by the adverse party, the Report, insofar as it proved that
certain utterances were made (but not their truth), was effectively removed from the ambit of the
aforementioned Section 44 of Rule 130. Properly understood, this section does away with the

testimony in open court of the officer who made the official record, considers the matter as an
exception to the hearsay rule and makes the entries in said official record admissible in evidence
as prima facie evidence of the facts therein stated. The underlying reasons for this exceptionary rule
are necessity and trustworthiness, as explained in Antillon v. Barcelon.
The 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 a witness are
numberless.The public officers are few in whose daily work something is not done in
which testimony is not needed from official sources. Were there no exception for official
statements, hosts of officials would be found devoting the greater part of their time to
attending as witnesses in court or delivering deposition before an officer. The work of
administration of government and the interest of the public having business with officials
would alike suffer in consequence. For these reasons, and for many others, a certain verity
is accorded such documents, which is not extended to private documents. (3 Wigmore on
Evidence, Sec. 1631).
The law reposes a particular confidence in public officers that it presumes they will discharge their
several trusts with accuracy and fidelity; and, therefore, whatever acts they do in discharge of their
duty may be given in evidence and shall be taken to be true under such a degree of caution as to the
nature and circumstances of each case may appear to require.
It would have been an entirely different matter if Major Enriquez was not presented to testify on his
report. In that case the applicability of Section 44 of Rule 143 would have been ripe for
determination, and this Court would have agreed with the Court of Appeals that said report was
inadmissible since the aforementioned third requisite was not satisfied. The statements given by the
sources of information of Major Enriquez failed to qualify as official information, there being no
showing that, at the very least, they were under a duty to give the statements for record.
Similarly, the police report in this case is inadmissible for the purpose of proving the truth of
the statements contained therein but is admissible insofar as it constitutes part of the testimony of
PO3 Villanueva.
In any case, the Court holds that portions of PO3 Villanuevas testimony which were of his
personal knowledge suffice to prove that Jose Juego indeed died as a result of the elevator
crash. PO3 Villanueva had seen Juegos remains at the morgue, [12] making the latters death beyond
dispute. PO3 Villanueva also conducted an ocular inspection of the premises of the building the day
after the incident[13] and saw the platform for himself.[14] He observed that the platform was
crushed[15] and that it was totally damaged. [16] PO3 Villanueva also required Garcia and Fabro to
bring the chain block to the police headquarters. Upon inspection, he noticed that the chain was
detached from the lifting machine, without any pin or bolt. [17]
What petitioner takes particular exception to is PO3 Villanuevas testimony that the cause of the
fall of the platform was the loosening of the bolt from the chain block. It is claimed that such

portion of the testimony is mere opinion. Subject to certain exceptions,[18] the opinion of a witness is
generally not admissible.[19]
Petitioners contention, however, loses relevance in the face of the application of res ipsa
loquitur by the CA. The effect of the doctrine is to warrant a presumption or inference that the mere
fall of the elevator was a result of the person having charge of the instrumentality was negligent. As
a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence which
recognizes that prima facie negligence may be established without direct proof and furnishes a
substitute for specific proof of negligence. [20]
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere happening of an
accident or injury will not generally give rise to an inference or presumption that it was due to
negligence on defendants part, under the doctrine of res ipsa loquitur, which means, literally, the
thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks
for itself, the facts or circumstances accompanying an injury may be such as to raise a presumption,
or at least permit an inference of negligence on the part of the defendant, or some other person who
is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused the injury complained of was
under the control or management of the defendant, and that the occurrence resulting in the injury
was such as in the ordinary course of things would not happen if those who had its control or
management used proper care, there is sufficient evidence, or, as sometimes stated, reasonable
evidence, in the absence of explanation by the defendant, that the injury arose from or was caused
by the defendants want of care.[21]
One of the theoretical bases for the doctrine is its necessity, i.e., that necessary evidence is
absent or not available.[22]
The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the
instrumentality which causes the injury either knows the cause of the accident or has the best
opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is
compelled to allege negligence in general terms and to rely upon the proof of the happening of the
accident in order to establish negligence. The inference which the doctrine permits is grounded
upon the fact that the chief evidence of the true cause, whether culpable or innocent, is practically
accessible to the defendant but inaccessible to the injured person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without
knowledge of the cause, reaches over to defendant who knows or should know the cause, for any
explanation of care exercised by the defendant in respect of the matter of which the plaintiff
complains. The res ipsa loquitur doctrine, another court has said, is a rule of necessity, in that it
proceeds on the theory that under the peculiar circumstances in which the doctrine is applicable, it
is within the power of the defendant to show that there was no negligence on his part, and direct

proof of defendants negligence is beyond plaintiffs power. Accordingly, some courts add to the
three prerequisites for the application of the res ipsa loquitur doctrine the further requirement that
for the res ipsa loquitur doctrine to apply, it must appear that the injured party had no knowledge or
means of knowledge as to the cause of the accident, or that the party to be charged with negligence
has superior knowledge or opportunity for explanation of the accident. [23]
The CA held that all the requisites of res ipsa loquitur are present in the case at bar:
There is no dispute that appellees husband fell down from the 14th floor of a building to the
basement while he was working with appellants construction project, resulting to his death. The
construction site is within the exclusive control and management of appellant. It has a safety
engineer, a project superintendent, a carpenter leadman and others who are in complete control of
the situation therein. The circumstances of any accident that would occur therein are peculiarly
within the knowledge of the appellant or its employees. On the other hand, the appellee is not in a
position to know what caused the accident. Res ipsa loquitur is a rule of necessity and it applies
where evidence is absent or not readily available, provided the following requisites are present: (1)
the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the
instrumentality or agency which caused the injury was under the exclusive control of the person
charged with negligence; and (3) the injury suffered must not have been due to any voluntary action
or contribution on the part of the person injured. x x x.
No worker is going to fall from the 14th floor of a building to the basement while performing work
in a construction site unless someone is negligent[;] thus, the first requisite for the application of
the rule ofres ipsa loquitur is present. As explained earlier, the construction site with all its
paraphernalia and human resources that likely caused the injury is under the exclusive control and
management of appellant[;] thus[,] the second requisite is also present. No contributory negligence
was attributed to the appellees deceased husband[;] thus[,] the last requisite is also present. All the
requisites for the application of the rule of res ipsa loquitur are present, thus a reasonable
presumption or inference of appellants negligence arises. x x x.[24]
Petitioner does not dispute the existence of the requisites for the application of res ipsa
loquitur, but argues that the presumption or inference that it was negligent did not arise since it
proved that it exercised due care to avoid the accident which befell respondents husband.
Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
defendants negligence is presumed or inferred [25] when the plaintiff establishes the requisites for the
application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements,
the burden then shifts to defendant to explain. [26] The presumption or inference may be rebutted or
overcome by other evidence and, under appropriate circumstances a disputable presumption, such
as that of due care or innocence, may outweigh the inference. [27] It is not for the defendant to explain
or prove its defense to prevent the presumption or inference from arising. Evidence by the
defendant of say, due care, comes into play only after the circumstances for the application of the
doctrine has been established.

In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed
before the police investigator as evidence of its due care. According to Fabro's sworn statement, the
company enacted rules and regulations for the safety and security of its workers. Moreover, the
leadman and the bodegero inspect the chain block before allowing its use.
It is ironic that petitioner relies on Fabros sworn statement as proof of its due care but, in
arguing that private respondent failed to prove negligence on the part of petitioners employees, also
assails the same statement for being hearsay.
Petitioner is correct. Fabro's sworn statement is hearsay and inadmissible. Affidavits are
inadmissible as evidence under the hearsay rule, unless the affiant is placed on the witness stand to
testify thereon.[28] The inadmissibility of this sort of evidence is based not only on the lack of
opportunity on the part of the adverse party to cross-examine the affiant, but also on the commonly
known fact that, generally, an affidavit is not prepared by the affiant himself but by another who
uses his own language in writing the affiants statements which may either be omitted or
misunderstood by the one writing them. [29]Petitioner, therefore, cannot use said statement as proof of
its due care any more than private respondent can use it to prove the cause of her husbands death.
Regrettably, petitioner does not cite any other evidence to rebut the inference or presumption of
negligence arising from the application of res ipsa loquitur, or to establish any defense relating to
the incident.
Next, petitioner argues that private respondent had previously availed of the death benefits
provided under the Labor Code and is, therefore, precluded from claiming from the deceaseds
employer damages under the Civil Code.
Article 173 of the Labor Code states:
ART. 173. Extent of liability. Unless otherwise provided, the liability of the State Insurance Fund
under this Title shall be exclusive and in place of all other liabilities of the employer to the
employee, his dependents or anyone otherwise entitled to receive damages on behalf of the
employee or his dependents. The payment of compensation under this Title shall not bar the
recovery of benefits as provided for in Section 699 of the Revised Administrative Code, Republic
Act Numbered Eleven hundred sixty-one, as amended, Republic Act Numbered Six hundred ten, as
amended, Republic Act Numbered Forty-eight hundred sixty-four as amended, and other laws
whose benefits are administered by the System or by other agencies of the government.
The precursor of Article 173 of the Labor Code, Section 5 of the Workmens Compensation Act,
provided that:
SEC. 5. Exclusive right to compensation. The rights and remedies granted by this Act to an
employee by reason of a personal injury entitling him to compensation shall exclude all other rights
and remedies accruing to the employee, his personal representatives, dependents or nearest of kin
against the employer under the Civil Code and other laws because of said injury x x x.

Whether Section 5 of the Workmens Compensation Act allowed recovery under said Act as
well as under the Civil Code used to be the subject of conflicting decisions. The Court finally
settled the matter in Floresca vs. Philex Mining Corporation,[30] which involved a cave-in resulting
in the death of the employees of the Philex Mining Corporation. Alleging that the mining
corporation, in violation of government rules and regulations, failed to take the required
precautions for the protection of the employees, the heirs of the deceased employees filed a
complaint against Philex Mining in the Court of First Instance (CFI). Upon motion of Philex
Mining, the CFI dismissed the complaint for lack of jurisdiction. The heirs sought relief from this
Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En
Banc,[31] following the rule in Pacaa vs. Cebu Autobus Company, held in the affirmative.
WE now come to the query as to whether or not the injured employee or his heirs in case of death
have a right of selection or choice of action between availing themselves of the workers right under
the Workmens Compensation Act and suing in the regular courts under the Civil Code for higher
damages (actual, moral and exemplary) from the employers by virtue of the negligence or fault of
the employers or whether they may avail themselves cumulatively of both actions, i.e., collect the
limited compensation under the Workmens Compensation Act and sue in addition for damages in
the regular courts.
In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus Company, 32 SCRA 442,
ruled that an injured worker has a choice of either to recover from the employer the fixed amounts
set by the Workmens Compensation Act or to prosecute an ordinary civil action against the
tortfeasor for higher damages but he cannot pursue both courses of action
simultaneously. [Underscoring supplied.]
Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit
under the Civil Code despite having availed of the benefits provided under the Workmens
Compensation Act.The Court reasoned:
With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May 14,
1968 before the court a quo, that the heirs of the deceased employees, namely Emerito Obra, Larry
Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and claims for
compensation to the Regional Office No.1 of the then Department of Labor and all of them have
been paid in full as of August 25, 1967, except Saturnino Martinez whose heirs decided that they be
paid in installments x x x. Such allegation was admitted by herein petitioners in their opposition to
the motion to dismiss dated May 27, 1968 x x x in the lower court, but they set up the defense that
the claims were filed under the Workmens Compensation Act before they learned of the official
report of the committee created to investigate the accident which established the criminal
negligence and violation of law by Philex, and which report was forwarded by the Director of
Mines to then Executive Secretary Rafael Salas in a letter dated October 19, 1967 only x x x.

WE hold that although the other petitioners had received the benefits under the Workmens
Compensation Act, such may not preclude them from bringing an action before the regular court
because they became cognizant of the fact that Philex has been remiss in its contractual obligations
with the deceased miners only after receiving compensation under the Act. Had petitioners been
aware of said violation of government rules and regulations by Philex, and of its negligence, they
would not have sought redress under the Workmens Compensation Commission which awarded a
lesser amount for compensation.The choice of the first remedy was based on ignorance or a mistake
of fact, which nullifies the choice as it was not an intelligent choice. The case should therefore be
remanded to the lower court for further proceedings. However, should the petitioners be successful
in their bid before the lower court, the payments made under the Workmens Compensation Act
should be deducted from the damages that may be decreed in their favor. [Underscoring supplied.]
The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael
Maritime Corporation vs. Avelino,[32] Vda. de Severo vs. Feliciano-Go,[33] and Marcopper Mining
Corp. vs. Abeleda.[34] In the last case, the Court again recognized that a claimant who had been paid
under the Act could still sue under the Civil Code. The Court said:
In the Robles case, it was held that claims for damages sustained by workers in the course of their
employment could be filed only under the Workmens Compensation Law, to the exclusion of all
further claims under other laws. In Floresca, this doctrine was abrogated in favor of the new rule
that the claimants may invoke either the Workmens Compensation Act or the provisions of the Civil
Code, subject to the consequence that the choice of one remedy will exclude the other and that the
acceptance of compensation under the remedy chosen will preclude a claim for additional benefits
under the other remedy.The exception is where a claimant who has already been paid under the
Workmens Compensation Act may still sue for damages under the Civil Code on the basis of
supervening facts or developments occurring after he opted for the first remedy. (Underscoring
supplied.)
Here, the CA held that private respondents case came under the exception because private
respondent was unaware of petitioners negligence when she filed her claim for death benefits from
the State Insurance Fund. Private respondent filed the civil complaint for damages after she
received a copy of the police investigation report and the Prosecutors Memorandum dismissing the
criminal complaint against petitioners personnel. While stating that there was no negligence
attributable to the respondents in the complaint, the prosecutor nevertheless noted in the
Memorandum that, if at all, the case is civil in nature. The CA thus applied the exception
in Floresca:
x x x We do not agree that appellee has knowledge of the alleged negligence of appellant as early as
November 25, 1990, the date of the police investigators report. The appellee merely executed her
sworn statement before the police investigator concerning her personal circumstances, her relation
to the victim, and her knowledge of the accident. She did not file the complaint for Simple
Negligence Resulting to Homicide against appellants employees. It was the investigator who
recommended the filing of said case and his supervisor referred the same to the prosecutors

office. This is a standard operating procedure for police investigators which appellee may not have
even known. This may explain why no complainant is mentioned in the preliminary statement of
the public prosecutor in her memorandum dated February 6, 1991, to wit: Respondent Ferdinand
Fabro x x x are being charged by complaint of Simple Negligence Resulting to Homicide. It is also
possible that the appellee did not have a chance to appear before the public prosecutor as can be
inferred from the following statement in said memorandum: Respondents who were notified
pursuant to Law waived their rights to present controverting evidence, thus there was no reason for
the public prosecutor to summon the appellee. Hence, notice of appellants negligence cannot be
imputed on appellee before she applied for death benefits under ECC or before she received the
first payment therefrom. Her using the police investigation report to support her complaint filed on
May 9, 1991 may just be an afterthought after receiving a copy of the February 6, 1991
Memorandum of the Prosecutors Office dismissing the criminal complaint for insufficiency of
evidence, stating therein that: The death of the victim is not attributable to any negligence on the
part of the respondents. If at all and as shown by the records this case is civil in nature.
(Underscoring supplied.) Considering the foregoing, We are more inclined to believe appellees
allegation that she learned about appellants negligence only after she applied for and received the
benefits under ECC. This is a mistake of fact that will make this case fall under the exception held
in the Floresca ruling.[35]
The CA further held that not only was private respondent ignorant of the facts, but of her rights
as well:
x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her
educational attainment; that she did not know what damages could be recovered from the death of
her husband; and that she did not know that she may also recover more from the Civil Code than
from the ECC. x x x.[36]
Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in
her complaint that her application and receipt of benefits from the ECC were attended by ignorance
or mistake of fact. Not being an issue submitted during the trial, the trial court had no authority to
hear or adjudicate that issue."
Petitioner also claims that private respondent could not have been ignorant of the facts because
as early as November 28, 1990, private respondent was the complainant in a criminal complaint for
"Simple Negligence Resulting to Homicide" against petitioner's employees. On February 6, 1991,
two months before the filing of the action in the lower court, Prosecutor Lorna Lee issued a
resolution finding that, although there was insufficient evidence against petitioner's employees, the
case was "civil in nature." These purportedly show that prior to her receipt of death benefits from
the ECC on January 2, 1991 and every month thereafter, private respondent also knew of the two
choices of remedies available to her and yet she chose to claim and receive the benefits from the
ECC.

When a party having knowledge of the facts makes an election between inconsistent remedies,
the election is final and bars any action, suit, or proceeding inconsistent with the elected remedy, in
the absence of fraud by the other party. The first act of election acts as a bar.[37] Equitable in nature,
the doctrine of election of remedies is designed to mitigate possible unfairness to both parties. It
rests on the moral premise that it is fair to hold people responsible for their choices. The purpose of
the doctrine is not to prevent any recourse to any remedy, but to prevent a double redress for a
single wrong.[38]
The choice of a party between inconsistent remedies results in a waiver by election. Hence, the
rule in Floresca that a claimant cannot simultaneously pursue recovery under the Labor Code and
prosecute an ordinary course of action under the Civil Code. The claimant, by his choice of one
remedy, is deemed to have waived the other.
Waiver is the intentional relinquishment of a known right.[39]
[It] is an act of understanding that presupposes that a party has knowledge of its rights, but chooses
not to assert them. It must be generally shown by the party claiming a waiver that the person
against whom the waiver is asserted had at the time knowledge, actual or constructive, of the
existence of the party's rights or of all material facts upon which they depended. Where one lacks
knowledge of a right, there is no basis upon which waiver of it can rest. Ignorance of a material fact
negates waiver, and waiver cannot be established by a consent given under a mistake or
misapprehension of fact.
A person makes a knowing and intelligent waiver when that person knows that a right exists and
has adequate knowledge upon which to make an intelligent decision. Waiver requires a knowledge
of the facts basic to the exercise of the right waived, with an awareness of its consequences. That a
waiver is made knowingly and intelligently must be illustrated on the record or by the evidence. [40]
That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception
in Floresca.
It is in light of the foregoing principles that we address petitioners contentions.
Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in
her complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to
burden private respondent with raising waiver as an issue. On the contrary, it is the defendant who
ought to plead waiver, as petitioner did in pages 2-3 of its Answer; [41] otherwise, the defense is
waived. It is, therefore, perplexing for petitioner to now contend that the trial court had no
jurisdiction over the issue when petitioner itself pleaded waiver in the proceedings before the trial
court.
Does the evidence show that private respondent knew of the facts that led to her husbands death
and the rights pertaining to a choice of remedies?

It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this
case, the fact that served as a basis for nullifying the waiver is the negligence of petitioners
employees, of which private respondent purportedly learned only after the prosecutor issued a
resolution stating that there may be civil liability. In Floresca, it was the negligence of the mining
corporation and its violation of government rules and regulations. Negligence, or violation of
government rules and regulations, for that matter, however, is not a fact, but a conclusion of law,
over which only the courts have the final say.Such a conclusion binds no one until the courts have
decreed so. It appears, therefore, that the principle that ignorance or mistake of fact nullifies a
waiver has been misapplied in Floresca and in the case at bar.
In any event, there is no proof that private respondent knew that her husband died in the
elevator crash when on November 15, 1990 she accomplished her application for benefits from the
ECC. The police investigation report is dated November 25, 1990, 10 days after the
accomplishment of the form. Petitioner filed the application in her behalf on November 27, 1990.
There is also no showing that private respondent knew of the remedies available to her when
the claim before the ECC was filed. On the contrary, private respondent testified that she was not
aware of her rights.
Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses
no one from compliance therewith. As judicial decisions applying or interpreting the laws or the
Constitution form part of the Philippine legal system (Article 8, Civil Code), private respondent
cannot claim ignorance of this Courts ruling in Floresca allowing a choice of remedies.
The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory
laws.[42] This may be deduced from the language of the provision, which, notwithstanding a person's
ignorance, does not excuse his or her compliance with the laws. The rule in Floresca allowing
private respondent a choice of remedies is neither mandatory nor prohibitory. Accordingly, her
ignorance thereof cannot be held against her.
Finally, the Court modifies the affirmance of the award of damages. The records do not indicate
the total amount private respondent ought to receive from the ECC, although it appears from
Exhibit K[43]that she received P3,581.85 as initial payment representing the accrued pension from
November 1990 to March 1991. Her initial monthly pension, according to the same Exhibit K, was
P596.97 and present total monthly pension was P716.40. Whether the total amount she will
eventually receive from the ECC is less than the sum of P644,000.00 in total damages awarded by
the trial court is subject to speculation, and the case is remanded to the trial court for such
determination. Should the trial court find that its award is greater than that of the ECC, payments
already received by private respondent under the Labor Code shall be deducted from the trial courts
award of damages. Consistent with our ruling in Floresca, this adjudication aims to prevent double
compensation.
WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to
determine whether the award decreed in its decision is more than that of the ECC. Should the award

decreed by the trial court be greater than that awarded by the ECC, payments already made to
private respondent pursuant to the Labor Code shall be deducted therefrom. In all other respects,
the Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Davide, Jr., C.J. (Chairman), Puno, and Ynares-Santiago, JJ., concur.
Pardo, J., on sick leave.