PEDRO J. VELASCO, PLAINTIFF-APPELLANT, VS. MANILA ELECTRIC CO., WILLIAM SNYDER, ITS PRESIDENT; JOHN COTTON AND HERMENEGILDO B. REYES, ITS VICE-PRESIDENTS; AND ANASTACIO A. AGAN,…

SERAFIN VILLARAZA, Building Inspector — “like a high pitch
note.” (the trial court’s description as to the imitation of noise made by
witness:  “….. more of a hissing
sound) (T. s. n., 16 July 1956, pages 59-60)

CONSTANCIO SORIA, City Electrician “—- humming sound”
….. “of a running car”.  (T. s.
n., 16 July 1956, page 87)

JOSE R. ALVAREZ, Sanitary Engineer, Quezon
City Health Department —– “….. substation emits a con­tinuous rumbling
sound which is audible within the premises and at about a radius of 70
meters.” “I stayed there from 6:00
p. m. to about 1:00 o’clock in the
morning” ….. “increases with the approach of twilight.” (T.s.n., 5 September 1956, pages 40-44)

NORBERTO S. AMORANTO, Quezon City Mayor
–? (for 30 minutes in the street at a distance of 12 to 15 meters from
sub-station) “I felt no effect on myself.” …… no [piercing
noise]” (T.s.n., 18 September 1956, page 189)

PACIFICO AUSTRIA,
architect, appellant’s neighbor: 
“……. like an approaching airplane ….. around five kilometers
away.” (T.s.n., 19 November 1956, pages 276-277)

ANGEL DEL ROSARIO, radiologist, appellant’s neighbor:  “….. as if it is a running motor or a
running dynamo, which disturbs the ear and the hearing of a person.” (T.s.n., 4 December 1956, page 21)

ANTONIO D. PAGUIA, lawyer —- “It may be likened to the
sound emitted by the whistle of a boat at a far distance but it is very
audible.” (T.s.n., 19 December 1956, page 309)

RENE RODRIGUEZ, sugar planter and sugar broker, appel­lant’s
neighbor — “It sounds like a big motor running continuously.” (T.s.n., 19 December 1956, page 347)

SIMPLICIO BELISARIO, Army captain — (on a visit to Velasco)
“I can compare the noise to an airplane C-47 being started – the
motor.” [Did not notice the noise from the substation when passing by, in
a car, Velasco’s house] (T.s.n., 7 January 1957,
pages 11-12)

MANOLO CONSTANTINO, businessman, appellant’s neighbor —
“It disturbs our concentration of mind.” (T.s.n.,
10 Jan­uary 1957, page 11)

PEDRO PICA, businessman, appellant’s neighbor:  “….. we can hear it very well [at a
distance of 100 to 150 meters].  (T.s.n., 10 January 1957, page 41.)

CIRENEO PUNZALAN, lawyer — “….. a continuous droning, …..
like the sound of an airplane.” (T.s.n. 17
January 1957, page 385)

JAIME C. ZAGUIRRE, Chief, Neuro-Psychiatry
Section, V. Luna Gen. Hospital —- “comparatively the sound was really
loud to bother a man sleeping.” (T.s.n., 17 Jan­uary
1957, page 406)

We are thus constrained to rely on quantitative measure­ments
shown by the record.  Under instructions
from the Di­rector of Health, samplings of the sound intensity were taken by
Dr. Jesus Almonte using a sound level meter and other
ins­truments.  Within the compound of the
plaintiff-appellant, near the wire fence serving as property line between him and
the appellee, on 27 August 1957 at 11:45 a.m., the
sound level under the sampaloc tree was 46-48
decibels, while behind Velasco’s kitchen, the meter registered 49-50; at the
same places on 29 August 1957, at 6:00 a.m., the readings were 56-59 and 61-62 decibels,
respectively; on 7 Septem­ber 1957, at 9:30 a.m., the sound level under the sampaloc tree was 74-76 decibels; and on 8 September 1957
at 3:35 in the morning, the reading under the same tree was 70 decibels, while
near the kitchen it was 79-80 decibels. 
Sev­eral measurements were also taken inside and outside the house
(Exhibit “NN-7, b-f”).  The
ambient sound of the lo­cality, or that sound level characteristic of it or
that sound predominating minus the sound of the sub-station is from 28 to 32 decibels.  (T.s.n., 26 March
1958, pages 6-7)

Mamerto Buenafe,
superintendent of the appellee’s electrical
laboratory, also took sound level samplings. 
On 19 December 1958, between 7:00 to 7:30 o’clock in the evening, at the
substation compound near the wire fence or property line, the readings were 55
and 54 and still near the fence close to the sampaloc
tree, it was 52 decibels; outside but close to the concrete wall, the readings
were 42 to 43 decibels; and near the transformers, it was 76 decibels (Exhibit
“13”).

Buenafe also took samplings at the
North General Hos­pital on 4 January 1959 between 9:05 to 9:45 in the
evening.  In the different rooms and
wards from the first to the fourth floors, the readings varied from 45 to 67
decibels.

Technical charts submitted in evidence show the fol­lowing
intensity levels in decibels of some familiar sounds: average residence: 40;
average office: 55; average auto­mobile, 15 feet: 70; noisiest spot at Niagara
Falls: 92 (Exhibit “11-B”); average dwelling: 35; quiet office: 40;
average office: 50; conversation: 60; pneumatic rock drill: 130 (Exhibit
“12”); quiet home — average living room: 40; home ventilation fan,
outside sound of good home aircon­ditioner or
automobile at 50 feet: 70 (Exhibit “15-A”).

Thus the impartial and objective evidence points to the sound
emitted by the appellee’s substation trans­formers
being of much higher level than the ambient sound of the locality.  The measurements taken by Dr. Almonte, who is not connected with either party, and is a
physi­cian to boot (unlike appellee’s electrical
superinten­dent Buenafe), appear more reliable.  The conclusion must be that, contrary to the
finding of the trial court, the noise continuously emitted, day and night,
constitutes an actionable nuisance for which the appellant is en­titled to
relief, by requiring the appellee company to adopt
the necessary measures to deaden or reduce the sound at the plaintiff’s house,
by replacing the interlink wire fence with a partition made of sound ab­sorbent
material, since the relocation of the substation is manifestly impracticable
and would be prejudicial to the customers of the Electric Company who are being
serviced from the substation.

Appellee company insists that as the
plaintiff’s own evidence (Exhibit “NN-7(c)”) the intensity of the
sound (as measured by Dr. Almonte) inside appellant’s
house is only 46 to 47 decibels at the consultation room, and 43 to 45 decibels
within the treatment room, the appel­lant had no ground to complain.  This argument is not meritorious, because the
noise at the bedrooms was deter­mined to be around 64-65 decibels, and the
medical evidence is to the effect that the basic root of the appellant’s
ailments was his inability to sleep due to the incessant noise with consequent
irritation, thus weakening his cons­titution and making him easy prey to
pathogenic germs that could not otherwise affect a person of normal health.

In Kentucky and West Virginia Co., Inc. vs. Ander­son, 156 SW.
857, the average of three readings along the plaintiff’s fence was only 44
decibels but, because the sound from the sub-station was interminable and mono­tonous,
the court authorized an injunction and damages. 
In the present case, the three readings along the property line are 52, 54
and 55 decibels.  Plaintiff’s case is
manifestly stronger.

Appellee company argues that the
plaintiff should not be heard to complain because the sound level at the North
General Hospital, where silence is observed, is even higher than at his
residence.  This comparison lacks basis
because it has not been established that the hos­pital is located in
surroundings similar to the resi­dential zone where the plaintiff lived or that
the sound at the hospital is similarly monotonous and ceaseless as the sound emitted
by the sub-station.

Constancio Soria
testified that “The way the trans­formers are built, the humming sound
cannot be avoided”.  On this
testimony, the company emphasizes that the sub-station was constructed for
public convenience.  Admitting that the
sound cannot be eliminated, there is no proof that it can not be reduced.  That the sub-station is needed for the Meralco to be able to serve well its customers is no
reason, however, why it should be operated to the detriment and discomfort of
others.^[3]

The fact that the Meralco had received
no complaint although it had been operating hereabouts for the past 50 years
with substations similar to the one in contro­versy is not a valid
argument.  The absence of suit neither
lessens the company’s liability under the law nor weakens the right of others
against it to demand their just due.

As to the damages caused by the noise, appellant Velasco, himself
a physician, claimed that the noise, as a precipitating factor, has caused him
anxiety neurosis, which, in turn, predisposed him to, or is concommitant
with, the other ailments which he was suffering at the time of the trial,
namely, pyelonephritis, ureteritis
and others; that these resulted in the loss of his professional income and
reduced his life expectancy.  The
breakdown of his claims is as follows:

A host of expert witnesses and voluminous medical literature,
laboratory findings and statistics of income were introduced in support of the
above claims.

The medical evidence of plaintiff’s doctors prepon­derates over
the expert evidence for defendant-appellee, not
merely because of its positive character but also because the physicians
presented by plaintiff had actually treated him, while the defense experts had
not done so.  Thus the evidence of the
latter was to a large extent conjectural. 
That appellant’s physical ailments should be due to infectious organisms
does not alter the fact that the loss of sleep, irritation and tension due to
excessive noise weakened his constitution and made him easy prey to the
infection.

Regarding the amount of damages claimed by appellant, it is plain
that the same are exaggerated.  To begin
with, the alleged loss of earnings at the rate of P19,000 per annum is
predicated on the Internal Revenue assessment, Exhibit “QQ-1”,
wherein appellant was found to have undeclared income of P8,338.20 in addition
to his declared gross income of P10,975.00 for 1954.  There is no competent showing, however, that
the source of such undeclared income was appel­lant’s profession.  In fact, the inference would be to the
contrary, for his gross income from the previous years 1951 to 1953 [Exhibits
“QQ-1(d)” to “QQ-1(f)”] was only P8,085.00 P5,860.00 and P7,120.00,
respectively, an average of P7,000.00 per annum.  Moreover, while his 1947 and 1948 income was
larger (P9,995.00 and P11,900.00), it appears that P5,000 thereof was the
appellant’s annual salary from the Quezon Memorial
Foundation, which was not really con­nected with the usual earnings derived
from practice as a physician. 
Considering, therefore, his actual earnings, the claimed moral damages
of P100,000.00 are utterly dis­proportionate. 
The alleged losses for shortening of appel­lant’s life expectancy are
not only inflated but specula­tive.

As to the demand for exemplary or punitive damages, there appears
no adequate basis for their award.  While
the appellee Manila Electric Company was convicted
for erecting the substation in question without permit from the Public Service
Commission, We find reasonable its explanation that its officials and counsel
had originally deemed that such permit was not required as the installation was
authorized by the terms of its franchise (as amended by Republic Act No. 150)
requiring it to spend within 5 years not less than forty million pesos for
maintenance and additions to its electric system, including needed power plants
and substations.  Neither the absence of
such permit from the Public Service Commission nor the lack of permit from the Quezon City autho­rities (a permit that was subsequently
granted) is incom­patible with the Company’s good faith, until the courts
finally ruled that its interpretation of the franchise was incorrect.

There are, moreover, several factors that mitigate defendant’s liability
in damages.  The first is that the noise
from the substation does not appear to be an exclusive causative factor of
plaintiff-appellant’s illnesses.  This is
proved by the circumstance that no other person in Velasco’s own household nor
in his immediate neighborhood was shown to have become sick despite the noise
complained of.  There is also evidence
that at the time the plaintiff-appellant appears to have been largely indebted
to various credit institutions, as a result of his unsuccessful gubernatorial
campaign, and this court can take judicial cognizance of the fact that
financial worries can affect unfavorably the debtor’s disposition and
mentality.

The other factor militating against full recovery by the
petitioner Velasco is his passivity in the face of the damage caused to him by
the noise of the substation.  Realizing
as a physician that the latter was disturbing or depriving him of sleep and
affecting both his physical and mental well being, he did not take any steps to
bring action to abate the nuisance or remove himself from the affected area as
soon as the deleterious effects became noticeable.  To evade them appellant did not even have to
sell his house; he could have leased it and rented other premises for sleeping
and maintaining his office and thus preserve his health as ordinary prudence
demanded.  Instead he obstinately stayed
until his health became gravely affected, apparently hoping that he would
thereby saddle appellee with large damages.

The law in this jurisdiction is clear.  Article 2203 prescribes that “The party
suffering loss or injury must exercise the diligence of a good father of a
family to minimize the damages resulting from the act or omission in
question”.  This codal
rule, which embodies the previous jurisprudence on the point^[4],
clearly obligates the injured party to undertake measures that will alleviate
and not ag­gravate his condition after the infliction of the injury, and places
upon him the burden of explaining why he could not do so.  This was not done.

Appellant Velasco introduced evidence to the effect that he tried
to sell his house to Jose Valencia, Jr., in September, 1953, and on a 60 day
option, for P95,000.00, but that the prospective buyer backed out on account of
his wife objecting to the noise of the substation.  There is no reliable evidence, however, how
much were appellant’s lot and house worth, either before the option was given
to Va­lencia or after he refused to proceed with the sale or even during the
intervening period.  The existence of a
previous offer for P125,000.00, as claimed by the plaintiff, was not
corroborated by Valencia.  What Valencia
testified to in his deposition is that when they were negotiating on the price
Velasco mentioned to him about an offer by someone for P125,000.00.  The testimony of Valencia proves that in the
dialog between him and Velasco, part of the subject of their conversation was
about the prior offer, but it does not cor­roborate or prove the reality of the
offer for P125,000.00.  The testimony of
Velasco on this point, standing alone, is not credible enough, what with his
penchant for metaphor and exaggeration, as previously adverted to.  It is urged in appellant’s brief, along the
lines of his own testimony, that since one (1) transformer was measured by
witness Jimenez with a noise intensity of 47.2 decibels at a distance of 30.48
meters, the two (2) transformers of the substation should create an intensity
of 94.4 decibels at the same distance. 
If this were true, then the residence of the plaintiff is more noisy
than the noisiest spot at the Niagara Falls, which registers only 92 decibels
(Exhi­bit “15-A”).

Since there is no evidence upon which to compute any loss or
damage allegedly incurred by the plaintiff by the frustration of the sale on
account of the noise, his claim therefore was correctly disallowed by the trial
court.  It may be added that there is no
showing of any further attempts on the part of appellant to dispose of the
house, and this fact suffices to raise doubts as to whether he truly intended to
dispose of it.  He had no actual need to
do so in order to escape deterioration of his health, as heretofore noted.

Despite the wide gap between what was claimed and what was
proved, the plaintiff is entitled to damages for the annoyance and adverse effects
suffered by him since the substation started functioning in January, 1954.  Considering all the circumstances disclosed
by the record, as well as appellant’s failure to minimize the deleterious
influences from the substation, this Court is of the opinion that an award in
the amount of P20,000.00, by way of moderate and moral damages up to the
present, is reasonable.  Recovery of
attorney’s fees and litigation expenses in the sum of P5,000.00 is also
justified — the factual and legal issues were intri­cate (the transcript of
the stenographic notes is about 5,000 pages, side from an impressive number of
exhibits), and raised for the first time in this jurisdiction.^[5]

The last issue is whether the City Engineer of Quezon City, Anastacio A. Agan, a co-defendant, may be held soli­darily
liable with Meralco.

Agan was included as a party defendant
because he al­legedly (1) did not require the Meralco
to secure a building permit for the construction of the substation; (2) even
defended its construction by not insisting on such building permit; and (3) did
not initiate its removal or demolition and the criminal prosecution of the
officials of the Meralco.

The record does not support these allegations.  On the first plea, it was not Agan’s duty to require the Meralco
to secure a permit before the construction but for Meralco
to apply for it, as per Section 1, Ordinance No. 1530, of Quezon City.  The second allegation is not true, because Agan wrote the Meralco requiring
it to submit the plan and to pay permit fees (T.s.n.,
14 January 1960, pages 2081-2082).  On
the third allegation, no law or ordinance has been cited specifying that it is
the city engineer’s duty to initiate the removal or demolition of, or for the
criminal prosecution of, those persons who are responsible for the
nuisance.  Republic Act 537, Section 24
(d), relied upon by the plaintiff, requires an order by, or previous approval
of, the mayor for the city engineer to cause or order the removal of buildings
or structures in violation of law or ordinances, but the mayor could not be
expected to take action because he was of the belief, as he testified, that the
sound “did not have any effect on his body”.

FOR THE FOREGOING REASONS, the appealed decision is hereby
reversed in part and affirmed in part. 
The defendant-appellee Manila Electric Company
is hereby ordered to either transfer its substation at South D and South 6
Streets, Diliman, Quezon
City, or take appropriate measures to reduce its noise at the property line
between the defendant company’s compound and that of the plaintiff-appellant to
an average of forty (40) to fifty (50) decibels within 90 days from finality of
this decision; and to pay the said plaintiff-appellant P20,000.00 in damages
and P5,000.00 for attorney’s fees.  In
all other respects, the appealed decision is affirmed.  No costs.

Concepcion, C.J., Makalintal,
Zaldivar, Fernando, Teehankee,
Barredo, Villamor, and Makasiar, JJ., concur.

Dizon and
Castro, JJ., on official leave, did not take
part.

^[1] Decided
in 30 September 1960 (109
Phil. 603).

^[2]
France, Cour de Cessation, Decisions of, 19 April 1905 & 24 July 1908; Chambre
des Requetes, 5
Dec. 1904.  Cf. 33 Am. Jur. Nuisances, Section 47, pages 330-333:  “No one is entitled to absolute quiet in
the enjoyment of his property; he may only insist upon a degree of quietness
consistent with the standard of comfort prevailing in the locality in which he
dwells.  The location and surroundings
must be considered, since noise which amounts to a nuisance in one locality may
be entirely proper in another.  The
character and magnitude of the industry or business complained of and the
manner in which it is conducted must also be taken into consideration, and so
must the character and volume of the noise, the time and duration of its
occurrence, the number of people affected by it, and all the facts and
circumstances of the case.”

^[3]
Wheat Culvert Company vs. Jenkins, 246 Ky.
319, 55 SW. 2d. 4; 46 C. J. 683, 705.

^[4]
De Castelvi vs. Cia.
General de Tabacos, 49 Phil. 996; Lasam
vs. Smith, 41 Phil. 657; De Guia vs.
Manila Electric & Light Co., 40 Phil. 706.

^[5]
Civil Code of the Philippines,
Article 2208, No. 11.