G.R. No.

L-24803 May 26, 1977

PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of Agapito
Elcano,
deceased,plaintiffs-appellants,
vs.
REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of said
minor, defendants-appellees.
Cruz & Avecilla for appellants.
Marvin R. Hill & Associates for appellees.
BARREDO, J.:
Appeal from the order of the Court of First Instance of Quezon City dated January 29, 1965 in
Civil Case No. Q-8102, Pedro Elcano et al. vs. Reginald Hill et al. dismissing, upon motion to
dismiss of defendants, the complaint of plaintiffs for recovery of damages from defendant
Reginald Hill, a minor, married at the time of the occurrence, and his father, the defendant
Marvin Hill, with whom he was living and getting subsistence, for the killing by Reginald of
the son of the plaintiffs, named Agapito Elcano, of which, when criminally prosecuted, the
said accused was acquitted on the ground that his act was not criminal, because of "lack of
intent to kill, coupled with mistake."
Actually, the motion to dismiss based on the following grounds:
1. The present action is not only against but a violation of section 1, Rule 107,
which is now Rule III, of the Revised Rules of Court;
2. The action is barred by a prior judgment which is now final and or in resadjudicata;
3. The complaint had no cause of action against defendant Marvin Hill,
because he was relieved as guardian of the other defendant through
emancipation by marriage.
(P. 23, Record [p. 4, Record on Appeal.])
was first denied by the trial court. It was only upon motion for reconsideration of the
defendants of such denial, reiterating the above grounds that the following order was issued:
Considering the motion for reconsideration filed by the defendants on January
14, 1965 and after thoroughly examining the arguments therein contained,
the Court finds the same to be meritorious and well-founded.
WHEREFORE, the Order of this Court on December 8, 1964 is hereby
reconsidered by ordering the dismissal of the above entitled case.

SO ORDERED.
Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21, Record on
Appeal.)
Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for Our
resolution the following assignment of errors:
THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING THE
CLAIM OF DEFENDANTS THAT I
THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A VIOLATION OF
SECTION 1, RULE 107, NOW RULE 111, OF THE REVISED RULES OF COURT,
AND THAT SECTION 3(c) OF RULE 111, RULES OF COURT IS APPLICABLE;
II
THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL OR RESADJUDICTA;
III
THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF THE CIVIL
CODE, ARE INAPPLICABLE IN THE INSTANT CASE; and
IV
THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT
MARVIN HILL BECAUSE HE WAS RELIEVED AS GUARDIAN OF THE OTHER
DEFENDANT THROUGH EMANCIPATION BY MARRIAGE. (page 4, Record.)
It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendant- appellee
Reginald Hill was prosecuted criminally in Criminal Case No. 5102 of the Court of First
Instance of Quezon City. After due trial, he was acquitted on the ground that his act was not
criminal because of "lack of intent to kill, coupled with mistake." Parenthetically, none of the
parties has favored Us with a copy of the decision of acquittal, presumably because
appellants do not dispute that such indeed was the basis stated in the court's decision. And
so, when appellants filed their complaint against appellees Reginald and his father, Atty.
Marvin Hill, on account of the death of their son, the appellees filed the motion to dismiss
above-referred to.
As We view the foregoing background of this case, the two decisive issues presented for Our
resolution are:

1. Is the present civil action for damages barred by the acquittal of Reginald in the criminal
case wherein the action for civil liability, was not reversed?
2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied against Atty. Hill,
notwithstanding the undisputed fact that at the time of the occurrence complained of.
Reginald, though a minor, living with and getting subsistenee from his father, was already
legally married?
The first issue presents no more problem than the need for a reiteration and further
clarification of the dual character, criminal and civil, of fault or negligence as a source of
obligation which was firmly established in this jurisdiction in Barredo vs. Garcia, 73 Phil. 607.
In that case, this Court postulated, on the basis of a scholarly dissertation by Justice Bocobo
on the nature of culpa aquiliana in relation to culpa criminal or delito and mereculpa or fault,
with pertinent citation of decisions of the Supreme Court of Spain, the works of recognized
civilians, and earlier jurisprudence of our own, that the same given act can result in civil
liability not only under the Penal Code but also under the Civil Code. Thus, the opinion holds:
The, above case is pertinent because it shows that the same act machinist.
come under both the Penal Code and the Civil Code. In that case, the action of
the agent killeth unjustified and fraudulent and therefore could have been the
subject of a criminal action. And yet, it was held to be also a proper subject of
a civil action under article 1902 of the Civil Code. It is also to be noted that it
was the employer and not the employee who was being sued. (pp. 615-616,
73 Phil.). 1
It will be noticed that the defendant in the above case could have been
prosecuted in a criminal case because his negligence causing the death of the
child was punishable by the Penal Code. Here is therefore a clear instance of
the same act of negligence being a proper subject matter either of a criminal
action with its consequent civil liability arising from a crime or of an entirely
separate and independent civil action for fault or negligence under article
1902 of the Civil Code. Thus, in this jurisdiction, the separate individuality of
a cuasi-delito or culpa aquiliana, under the Civil Code has been fully and
clearly recognized, even with regard to a negligent act for which the
wrongdoer could have been prosecuted and convicted in a criminal case and
for which, after such a conviction, he could have been sued for this civil
liability arising from his crime. (p. 617, 73 Phil.) 2
It is most significant that in the case just cited, this Court specifically applied
article 1902 of the Civil Code. It is thus that although J. V. House could have
been criminally prosecuted for reckless or simple negligence and not only
punished but also made civilly liable because of his criminal negligence,
nevertheless this Court awarded damages in an independent civil action for
fault or negligence under article 1902 of the Civil Code. (p. 618, 73 Phil.) 3
The legal provisions, authors, and cases already invoked should ordinarily be
sufficient to dispose of this case. But inasmuch as we are announcing

doctrines that have been little understood, in the past, it might not he
inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in articles 365 punishes not only reckless but
also simple negligence. If we were to hold that articles 1902 to 1910 of the
Civil Code refer only to fault or negligence not punished by law, accordingly to
the literal import of article 1093 of the Civil Code, the legal institution of culpa
aquiliana would have very little scope and application in actual life. Death or
injury to persons and damage to property- through any degree of negligence even the slightest - would have to be Idemnified only through the principle of
civil liability arising from a crime. In such a state of affairs, what sphere would
remain for cuasi-delito or culpa aquiliana? We are loath to impute to the
lawmaker any intention to bring about a situation so absurd and anomalous.
Nor are we, in the interpretation of the laws, disposed to uphold the letter that
killeth rather than the spirit that giveth life. We will not use the literal meaning
of the law to smother and render almost lifeless a principle of such ancient
origin and such full-grown development as culpa aquiliana or cuasi-delito,
which is conserved and made enduring in articles 1902 to 1910 of the Spanish
Civil Code.
Secondary, to find the accused guilty in a criminal case, proof of guilt beyond
reasonable doubt is required, while in a civil case, preponderance of evidence
is sufficient to make the defendant pay in damages. There are numerous
cases of criminal negligence which can not be shown beyond reasonable
doubt, but can be proved by a preponderance of evidence. In such cases, the
defendant can and should be made responsible in a civil action under articles
1902 to 1910 of the Civil Code. Otherwise. there would be many instances of
unvindicated civil wrongs. "Ubi jus Idemnified remedium." (p. 620,73 Phil.)
Fourthly, because of the broad sweep of the provisions of both the Penal Code
and the Civil Code on this subject, which has given rise to the overlapping or
concurrence of spheres already discussed, and for lack of understanding of
the character and efficacy of the action for culpa aquiliana, there has grown
up a common practice to seek damages only by virtue of the civil
responsibility arising from a crime, forgetting that there is another remedy,
which is by invoking articles 1902-1910 of the Civil Code. Although this
habitual method is allowed by, our laws, it has nevertheless rendered
practically useless and nugatory the more expeditious and effective remedy
based on culpa aquiliana or culpa extra-contractual. In the present case, we
are asked to help perpetuate this usual course. But we believe it is high time
we pointed out to the harms done by such practice and to restore the principle
of responsibility for fault or negligence under articles 1902 et seq. of the Civil
Code to its full rigor. It is high time we caused the stream of quasi-delict
or culpa aquiliana to flow on its own natural channel, so that its waters may
no longer be diverted into that of a crime under the Penal Code. This will, it is
believed, make for the better safeguarding or private rights because it realtor,
an ancient and additional remedy, and for the further reason that an
independent civil action, not depending on the issues, limitations and results

of a criminal prosecution, and entirely directed by the party wronged or his

counsel, is more likely to secure adequate and efficacious redress. (p. 621, 73
Phil.)
Contrary to an immediate impression one might get upon a reading of the foregoing
excerpts from the opinion in Garcia that the concurrence of the Penal Code and the Civil
Code therein referred to contemplate only acts of negligence and not intentional voluntary
acts - deeper reflection would reveal that the thrust of the pronouncements therein is not so
limited, but that in fact it actually extends to fault or culpa. This can be seen in the reference
made therein to the Sentence of the Supreme Court of Spain of February 14, 1919, supra,
which involved a case of fraud or estafa, not a negligent act. Indeed, Article 1093 of the Civil
Code of Spain, in force here at the time of Garcia, provided textually that obligations "which
are derived from acts or omissions in which fault or negligence, not punishable by law,
intervene shall be the subject of Chapter II, Title XV of this book (which refers to quasidelicts.)" And it is precisely the underline qualification, "not punishable by law", that Justice
Bocobo emphasized could lead to an ultimo construction or interpretation of the letter of the
law that "killeth, rather than the spirit that giveth lift- hence, the ruling that "(W)e will not
use the literal meaning of the law to smother and render almost lifeless a principle of such
ancient origin and such full-grown development as culpa aquiliana orquasi-delito, which is
conserved and made enduring in articles 1902 to 1910 of the Spanish Civil Code." And so,
because Justice Bacobo was Chairman of the Code Commission that drafted the original text
of the new Civil Code, it is to be noted that the said Code, which was enacted after the
Garcia doctrine, no longer uses the term, 11 not punishable by law," thereby making it clear
that the concept of culpa aquiliana includes acts which are criminal in character or in
violation of the penal law, whether voluntary or matter. Thus, the corresponding provisions
to said Article 1093 in the new code, which is Article 1162, simply says, "Obligations derived
fromquasi-delicto shall be governed by the provisions of Chapter 2, Title XVII of this Book,
(on quasi-delicts) and by special laws." More precisely, a new provision, Article 2177 of the
new code provides:
ART. 2177. Responsibility for fault or negligence under the preceding article is
entirely separate and distinct from the civil liability arising from negligence
under the Penal Code. But the plaintiff cannot recover damages twice for the
same act or omission of the defendant.
According to the Code Commission: "The foregoing provision (Article 2177) through at first
sight startling, is not so novel or extraordinary when we consider the exact nature of
criminal and civil negligence. The former is a violation of the criminal law, while the latter is
a "culpa aquiliana" or quasi-delict, of ancient origin, having always had its own foundation
and individuality, separate from criminal negligence. Such distinction between criminal
negligence and "culpa extracontractual" or "cuasi-delito" has been sustained by decision of
the Supreme Court of Spain and maintained as clear, sound and perfectly tenable by Maura,
an outstanding Spanish jurist. Therefore, under the proposed Article 2177, acquittal from an
accusation of criminal negligence, whether on reasonable doubt or not, shall not be a bar to
a subsequent civil action, not for civil liability arising from criminal negligence, but for
damages due to a quasi-delict or 'culpa aquiliana'. But said article forestalls a double
recovery.", (Report of the Code) Commission, p. 162.)

Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the
same argument of Justice Bacobo about construction that upholds "the spirit that giveth liftrather than that which is literal that killeth the intent of the lawmaker should be observed in
applying the same. And considering that the preliminary chapter on human relations of the
new Civil Code definitely establishes the separability and independence of liability in a civil
action for acts criminal in character (under Articles 29 to 32) from the civil responsibility
arising from crime fixed by Article 100 of the Revised Penal Code, and, in a sense, the Rules
of Court, under Sections 2 and 3 (c), Rule 111, contemplate also the same separability, it is
"more congruent with the spirit of law, equity and justice, and more in harmony with modern
progress"- to borrow the felicitous relevant language in Rakes vs. Atlantic. Gulf and Pacific
Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it refers to "fault or
negligencia covers not only acts "not punishable by law" but also acts criminal in character,
whether intentional and voluntary or negligent. Consequently, a separate civil action lies
against the offender in a criminal act, whether or not he is criminally prosecuted and found
guilty or acquitted, provided that the offended party is not allowed, if he is actually charged
also criminally, to recover damages on both scores, and would be entitled in such
eventuality only to the bigger award of the two, assuming the awards made in the two cases
vary. In other words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule
111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code,
whereas the civil liability for the same act considered as a quasi-delict only and not as a
crime is not estinguished even by a declaration in the criminal case that the criminal act
charged has not happened or has not been committed by the accused. Briefly stated, We
here hold, in reiteration of Garcia, thatculpa aquiliana includes voluntary and negligent acts
which may be punishable by law.4
It results, therefore, that the acquittal of Reginal Hill in the criminal case has not
extinguished his liability for quasi-delict, hence that acquittal is not a bar to the instant
action against him.
Coming now to the second issue about the effect of Reginald's emancipation by marriage on
the possible civil liability of Atty. Hill, his father, it is also Our considered opinion that the
conclusion of appellees that Atty. Hill is already free from responsibility cannot be upheld.
While it is true that parental authority is terminated upon emancipation of the child (Article
327, Civil Code), and under Article 397, emancipation takes place "by the marriage of the
minor (child)", it is, however, also clear that pursuant to Article 399, emancipation by
marriage of the minor is not really full or absolute. Thus "(E)mancipation by marriage or by
voluntary concession shall terminate parental authority over the child's person. It shall
enable the minor to administer his property as though he were of age, but he cannot borrow
money or alienate or encumber real property without the consent of his father or mother, or
guardian. He can sue and be sued in court only with the assistance of his father, mother or
guardian."
Now under Article 2180, "(T)he obligation imposed by article 2176 is demandable not only
for one's own acts or omissions, but also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are responsible. The father
and, in case of his death or incapacity, the mother, are responsible for the damages caused
by the minor children who live in their company." In the instant case, it is not controverted

that Reginald, although married, was living with his father and getting subsistence from him
at the time of the occurrence in question. Factually, therefore, Reginald was still subservient
to and dependent on his father, a situation which is not unusual.
It must be borne in mind that, according to Manresa, the reason behind the joint and solidary
liability of presuncion with their offending child under Article 2180 is that is the obligation of
the parent to supervise their minor children in order to prevent them from causing damage
to third persons. 5 On the other hand, the clear implication of Article 399, in providing that a
minor emancipated by marriage may not, nevertheless, sue or be sued without the
assistance of the parents, is that such emancipation does not carry with it freedom to enter
into transactions or do any act that can give rise to judicial litigation. (See Manresa, Id., Vol.
II, pp. 766-767, 776.) And surely, killing someone else invites judicial action. Otherwise
stated, the marriage of a minor child does not relieve the parents of the duty to see to it that
the child, while still a minor, does not give answerable for the borrowings of money and
alienation or encumbering of real property which cannot be done by their minor married
child without their consent. (Art. 399; Manresa, supra.)
Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding the
emancipation by marriage of Reginald. However, inasmuch as it is evident that Reginald is
now of age, as a matter of equity, the liability of Atty. Hill has become milling, subsidiary to
that of his son.
WHEREFORE, the order appealed from is reversed and the trial court is ordered to proceed in
accordance with the foregoing opinion. Costs against appellees.
Fernando (Chairman), Antonio, and Martin, JJ., concur.
Concepcion Jr., J, is on leave.
Martin, J, was designated to sit in the Second Division.

Separate Opinions

AQUINO, J, concurring:
Article 2176 of the Civil Code comprehends any culpable act, which is blameworthy, when
judged by accepted legal standards. "The Idea thus expressed is undoubtedly board enough
to include any rational conception of liability for the tortious acts likely to be developed in
any society." (Street, J. in Daywalt vs. Corporacion de PP. Agustinos Recoletos, 39 Phil. 587,
600). See article 38, Civil Code and the ruling that "the infant tortfeasor is liable in a civil
action to the injured person in the same manner and to the same extent as an adult" (27
Am. Jur. 812 cited by Bocobo, J., in Magtibay vs. Tiangco, 74 Phil. 576, 579).

Separate Opinions
AQUINO, J, concurring:
Article 2176 of the Civil Code comprehends any culpable act, which is blameworthy, when
judged by accepted legal standards. "The Idea thus expressed is undoubtedly board enough
to include any rational conception of liability for the tortious acts likely to be developed in
any society." (Street, J. in Daywalt vs. Corporacion de PP. Agustinos Recoletos, 39 Phil. 587,
600). See article 38, Civil Code and the ruling that "the infant tortfeasor is liable in a civil
action to the injured person in the same manner and to the same extent as an adult" (27
Am. Jur. 812 cited by Bocobo, J., in Magtibay vs. Tiangco, 74 Phil. 576, 579).

G.R. No. 108017 April 3, 1995

MARIA BENITA A. DULAY, in her own behalf and in behalf of the minor children
KRIZTEEN ELIZABETH, BEVERLY MARIE and NAPOLEON II, all surnamed
DULAY, petitioners,
vs.
THE COURT OF APPEALS, Former Eighth Division, HON. TEODORO P. REGINO, in his
capacity as Presiding Judge of the Regional Trial Court National Capital Region,
Quezon City, Br. 84, SAFEGUARD INVESTIGATION AND SECURITY CO., INC., and
SUPERGUARD SECURITY CORPORATION, respondents.

BIDIN, J.:
This petition for certiorari prays for the reversal of the decision of the Court of Appeals dated
October 29, 1991 in CA-G.R. CV No. 24646 which affirmed the order of the Regional Trial
Court dismissing Civil Case No. Q-89-1751, and its resolution dated November 17, 1991
denying herein, petitioner's motion for reconsideration.
The antecedent facts of the case are as follows:

On December 7, 1988, an altercation between Benigno Torzuela and Atty. Napoleon Dulay
occurred at the "Big Bang Sa Alabang," Alabang Village, Muntinlupa as a result of which
Benigno Torzuela, the security guard on duty at the said carnival, shot and killed Atty.
Napoleon Dulay.
Herein petitioner Maria Benita A. Dulay, widow of the deceased Napoleon Dulay, in her own
behalf and in behalf of her minor children, filed on February 8, 1989 an action for damages
against Benigno Torzuela and herein private respondents Safeguard Investigation and
Security Co., Inc., ("SAFEGUARD") and/or Superguard Security Corp. ("SUPERGUARD"),
alleged employers of defendant Torzuela. The complaint, docketed as Civil Case No. Q-891751 among others alleges the following:
1. . . .
Defendants SAFEGUARD INVESTIGATION AND SECURITY CO., INC., (Defendant
Safeguard) and SUPERGUARD SECURITY CORPORATION (Defendant
Superguard) are corporations duly organized and existing in accordance with
Philippine laws, with offices at 10th Floor, Manufacturers Building, Inc., Plaza
Santa Cruz, Manila. They are impleaded as alternative defendants for, while
the former appears to be the employer of defendant BENIGNO TORZUELA
(defendant TORZUELA), the latter impliedly acknowledged responsibility for
the acts of defendant TORZUELA by extending its sympathies to plaintiffs.
Defendant BENIGNO TORZUELA is of legal age, an employee of defendant
SAFEGUARD and/or defendant SUPERGUARD and, at the time of the incident
complained of, was under their control and supervision. . . .
3. On December 7, 1988 at around 8:00 a.m., defendant TORZUELA, while he
was on duty as security guard at the "Big Bang sa Alabang," Alabang Village,
Muntinlupa, Metro Manila shot and killed NAPOLEON V. DULAY with a .38
caliber revolver belonging to defendant SAFEGUARD, and/or SUPERGUARD
(per Police Report dated January 7, 1989, copy attached as Annex A);
4. The incident resulting in the death of NAPOLEON V. DULAY was due to the
concurring negligence of the defendants. Defendant TORZUELA'S wanton and
reckless discharge of the firearm issued to him by defendant SAFEGUARD
and/or SUPERGUARD was the immediate and proximate cause of the injury,
while the negligence of defendant SAFEGUARD and/or SUPERGUARD consists
in its having failed to exercise the diligence of a good father of a family in the
supervision and control of its employee to avoid the injury.
xxx xxx xxx
(Rollo, pp. 117-118)
Petitioners prayed for actual, compensatory, moral and exemplary damages, and attorney's
fees. The said Civil Case No. Q-89-1751 was raffled to Branch 84 of the Regional Trial Court
of Quezon City, presided by respondent Judge Teodoro Regino.

On March 2, 1989, private respondent SUPERGUARD filed a Motion to Dismiss on the ground
that the complaint does not state a valid cause of action. SUPERGUARD claimed that
Torzuela's act of shooting Dulay was beyond the scope of his duties, and that since the
alleged act of shooting was committed with deliberate intent (dolo), the civil liability therefor
is governed by Article 100 of the Revised Penal Code, which states:
Art. 100. Civil liability of a person guilty of a felony. Every person criminally
liable for a felony is also civilly liable.
Respondent SUPERGUARD further alleged that a complaint for damages based on
negligence under Article 2176 of the New Civil Code, such as the one filed by petitioners,
cannot lie, since the civil liability under Article 2176 applies only to quasi-offenses under
Article 365 of the Revised Penal Code. In addition, the private respondent argued that
petitioners' filing of the complaint is premature considering that the conviction of Torzuela in
a criminal case is a condition sine qua non for the employer's subsidiary liability (Rollo, p.
55-59).
Respondent SAFEGUARD also filed a motion praying that it be excluded as defendant on the
ground that defendant Torzuela is not one of its employees (Rollo, p. 96).
Petitioners opposed both motions, stating that their cause of action against the private
respondents is based on their liability under Article 2180 of the New Civil Code, which
provides:
Art. 2180. The obligation imposed by Article 2176 is demandable not only for
one's own acts or omissions, but also for those of persons for whom one is
responsible.
xxx xxx xxx
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or an industry.
xxx xxx xxx
(Emphasis supplied)
Petitioners contended that a suit against alternative defendants is allowed under Rule 3,
Section 13 of the Rules of Court. Therefore, the inclusion of private respondents as
alternative defendants in the complaint is justified by the following: the Initial Investigation
Report prepared by Pat. Mario Tubon showing that Torzuela is an employee of SAFEGUARD;
and through overt acts, SUPERGUARD extended its sympathies to petitioners (Rollo, pp. 64
and 98).
Meanwhile, an Information dated March 21, 1989 charging Benigno Torzuela with homicide
was filed before the Regional Trial Court of Makati and was docketed as Criminal Case No.
89-1896.

On April 13, 1989, respondent Judge Regino issued an order granting SUPERGUARD'S motion
to dismiss and SAFEGUARD'S motion for exclusion as defendant. The respondent judge held
that the complaint did not state facts necessary or sufficient to constitute a quasi-delict
since it does not mention any negligence on the part of Torzuela in shooting Napoleon Dulay
or that the same was done in the performance of his duties. Respondent judge ruled that
mere allegations of the concurring negligence of the defendants (private respondents
herein) without stating the facts showing such negligence are mere conclusions of law
(Rollo, p. 106). Respondent judge also declared that the complaint was one for damages
founded on crimes punishable under Articles 100 and 103 of the Revised Penal Code as
distinguished from those arising from, quasi-delict. The dispositive portion of the order dated
April 13, 1989 states:
WHEREFORE, this Court holds that in view of the material and ultimate facts
alleged in the verified complaint and in accordance with the applicable law on
the matter as well as precedents laid down by the Supreme Court, the
complaint against the alternative defendants Superguard Security Corporation
and Safeguard Investigation and Security Co., Inc., must be and (sic) it is
hereby dismissed. (Rollo, p. 110)
The above order was affirmed by the respondent court and petitioners' motion for
reconsideration thereof was denied.
Petitioners take exception to the assailed decision and insist that quasi-delicts are not
limited to acts of negligence but also cover acts that are intentional and voluntary, citing
Andamo v. IAC (191 SCRA 195 [1990]). Thus, petitioners insist that Torzuela' s act of
shooting Napoleon Dulay constitutes a quasi-delict actionable under Article 2176 of the New
Civil Code.
Petitioners further contend that under Article 2180 of the New Civil Code, private
respondents are primarily liable for their negligence either in the selection or supervision of
their employees. This liability is independent of the employee's own liability for fault or
negligence and is distinct from the subsidiary civil liability under Article 103 of the Revised
Penal Code. The civil action against the employer may therefore proceed independently of
the criminal action pursuant to Rule 111 Section 3 of the Rules of Court. Petitioners submit
that the question of whether Torzuela is an employee of respondent SUPERGUARD or
SAFEGUARD would be better resolved after trial.
Moreover, petitioners argue that Torzuela's act of shooting Dulay is also actionable under
Article 33 of the New Civil Code, to wit:
Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for
damages, entirely separate and distinct from the criminal action, may be
brought by the injured party. Such civil action shall proceed independently of
the criminal prosecution, and shall require only a preponderance of evidence.
(Emphasis supplied)
In the same vein, petitioners cite Section 3, Rule 111 of the Rules of Court which provides:

Rule 111. . . . .
Sec. 3. When civil action may proceed independently In the cases provided
for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the
independent civil action which has been reserved may be brought by the
offended party, shall proceed independently of the criminal action, and shall
require only a preponderance of evidence. (Emphasis supplied)
The term "physical injuries" under Article 33 has been held to include consummated,
frustrated and attempted homicide. Thus, petitioners maintain that Torzuela's prior
conviction is unnecessary since the civil action can proceed independently of the criminal
action. On the other hand, it is the private respondents' argument that since the act was not
committed with negligence, the petitioners have no cause of action under Articles 2116 and
2177 of the New Civil Code. The civil action contemplated in Article 2177 is not applicable to
acts committed with deliberate intent, but only applies to quasi-offenses under Article 365 of
the Revised Penal Code. Torzuela's act of shooting Atty. Dulay to death, aside from being
purely personal, was done with deliberate intent and could not have been part of his duties
as security guard. And since Article 2180 of the New Civil Code covers only: acts done within
the scope of the employee's assigned tasks, the private respondents cannot be held liable
for damages.
We find for petitioners.
It is undisputed that Benigno Torzuela is being prosecuted for homicide for the fatal shooting
of Napoleon Dulay. Rule 111 of the Rules on Criminal Procedure provides:
Sec. 1. Institution of criminal and civil actions. When a criminal action is
instituted, the civil action for the recovery of civil liability is impliedly
instituted with the criminal action, unless the offended party waives the civil
action , reserves his right to institute it separately or institutes the civil action
prior to the criminal action.
Such civil action includes recovery of indemnity under the Revised Penal Code,
and damages under Articles 32, 33, 34, and 2176 of the Civil Code of the
Philippines arising from the same act or omission of the accused. (Emphasis
supplied)
It is well-settled that the filing of an independent civil action before the prosecution in the
criminal action presents evidence is even far better than a compliance with the requirement
of express reservation (Yakult Philippines v. Court of Appeals, 190 SCRA 357 [1990]). This is
precisely what the petitioners opted to do in this case. However, the private respondents
opposed the civil action on the ground that the same is founded on a delict and not on a
quasi-delict as the shooting was not attended by negligence. What is in dispute therefore is
the nature of the petitioner's cause of action.
The nature of a cause of action is determined by the facts alleged in the complaint as
constituting the cause of action (Republic v. Estenzo, 158 SCRA 282 [1988]). The purpose of
an action or suit and the law to govern it is to be determined not by the claim of the party

filing the action, made in his argument or brief, but rather by the complaint itself, its
allegations and prayer for relief. (De Tavera v. Philippine Tuberculosis Society, 112 SCRA 243
[1982]). An examination of the complaint in the present case would show that the plaintiffs,
petitioners herein, are invoking their right to recover damages against the private
respondents for their vicarious responsibility for the injury caused by Benigno Torzuela's act
of shooting and killing Napoleon Dulay, as stated in paragraphs 1 and 2 of the complaint.
Article 2176 of the New Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the parties
is called a quasi-delict and is governed by the provisions of this Chapter.
Contrary to the theory of private respondents, there is no justification for limiting the scope
of Article 2176 of the Civil Code to acts or omissions resulting from negligence. Wellentrenched is the doctrine that article 2176 covers not only acts committed with negligence,
but also acts which are voluntary and intentional. As far back as the definitive case of Elcano
v. Hill (77 SCRA 98 [1977]), this Court already held that:
. . . Article 2176, where it refers to "fault or negligence," covers not only acts
"not punishable by law" but also acts criminal in character; whether
intentional and voluntary or negligent. Consequently, a separate civil action
against the offender in a criminal act, whether or not he is criminally
prosecuted and found guilty or acquitted, provided that the offended party is
not allowed, if he is actually charged also criminally, to recover damages on
both scores, and would be entitled in such eventuality only to the bigger
award of the two, assuming the awards made in the two cases vary. In other
words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule
111, refers exclusively to civil liability founded on Article 100 of the Revised
Penal Code, whereas the civil liability for the same act considered as quasidelict only and not as a crime is not extinguished even by a declaration in the
criminal case that the criminal act charged has not happened or has not been
committed by the accused. Briefly stated, We here hold, in reiteration of
Garcia, that culpa aquiliana includes voluntary and negligent acts which may
be punishable by law. (Emphasis supplied)
The same doctrine was echoed in the case of Andamo v. Intermediate Appellate Court (191
SCRA 195 [1990]), wherein the Court held:
Article 2176, whenever it refers to "fault or negligence," covers not only acts
criminal in character, whether intentional and voluntary or negligent.
Consequently, a civil action lies against the offender in a criminal act, whether
or not he is prosecuted or found guilty or acquitted, provided that the
offended party is not allowed, (if the tortfeasor is actually also charged
criminally), to recover damages on both scores, and would be entitled in such
eventuality only to the bigger award of the two, assuming the awards made in
the two cases vary. [citing Virata v. Ochoa, 81 SCRA 472] (Emphasis supplied)

Private respondents submit that the word "intentional" in the Andamo case is inaccurate
obiter, and should be read as "voluntary" since intent cannot be coupled with negligence as
defined by Article 365 of the Revised Penal Code. In the absence of more substantial
reasons, this Court will not disturb the above doctrine on the coverage of Article 2176.
Private respondents further aver that Article 33 of the New Civil Code applies only to injuries
intentionally committed pursuant to the ruling in Marcia v. CA (120 SCRA 193 [1983]), and
that the actions for damages allowed thereunder are ex-delicto. However, the term "physical
injuries" in Article 33 has already been construed to include bodily injuries causing death
(Capuno v. Pepsi-Cola Bottling Co. of the Philippines, 121 Phil. 638 [1965); Carandang v.
Santiago, 97 Phil. 94 [1955]). It is not the crime of physical injuries defined in the Revised
Penal Code. It includes not only physical injuries but also consummated, frustrated, and
attempted homicide (Madeja v. Caro, 126 SCRA 293 [1983]). Although in the Marcia case
(supra), it was held that no independent civil action may be filed under Article 33 where the
crime is the result of criminal negligence, it must be noted however, that Torzuela, the
accused in the case at bar, is charged with homicide, not with reckless imprudence, whereas
the defendant in Marcia was charged with reckless imprudence. Therefore, in this case, a
civil action based on Article 33 lies.
Private respondents also contend that their liability is subsidiary under the Revised Penal
Code; and that they are not liable for Torzuela's act which is beyond the scope of his duties
as a security guard. It having been established that the instant action is not ex-delicto,
petitioners may proceed directly against Torzuela and the private respondents. Under Article
2180 of the New Civil Code as aforequoted, when an injury is caused by the negligence of
the employee, there instantly arises a presumption of law that there was negligence on the
part of the master or employer either in the selection of the servant or employee, or in
supervision over him after selection or both (Layugan v. Intermediate Appellate Court, 167
SCRA 363 [1988]). The liability of the employer under Article 2180 is direct and immediate; it
is not conditioned upon prior recourse against the negligent employee and a prior showing
of the insolvency of such employee (Kapalaran Bus Lines v. Coronado, 176 SCRA 792
[1989]). Therefore, it is incumbent upon the private respondents to prove that they
exercised the diligence of a good father of a family in the selection and supervision of their
employee.
Since Article 2176 covers not only acts of negligence but also acts which are intentional and
voluntary, it was therefore erroneous on the part of the trial court to dismiss petitioner's
complaint simply because it failed to make allegations of attendant negligence attributable
to private respondents.
With respect to the issue of whether the complaint at hand states a sufficient cause of
action, the general rule is that the allegations in a complaint are sufficient to constitute a
cause of action against the defendants if, admitting the facts alleged, the court can render a
valid judgment upon the same in accordance with the prayer therein. A cause of action exist
if the following elements are present, namely: (1) a right in favor of the plaintiff by whatever
means and under whatever law it arises or is created; (2) an obligation on the part of the
named defendant to respect or not to violate such right; and (3) an act or omission on the
part of such defendant violative of the right of the plaintiff or constituting a breach of the
obligation of the defendant to the plaintiff for which the latter may maintain an action for

recovery of damages (Del Bros Hotel Corporation v. CA, 210 SCRA 33 [1992]); Development
Bank of the Philippines v. Pundogar, 218 SCRA 118 [1993])
This Court finds, under the foregoing premises, that the complaint sufficiently alleged an
actionable breach on the part of the defendant Torzuela and respondents SUPERGUARD
and/or SAFEGUARD. It is enough that the complaint alleged that Benigno Torzuela shot
Napoleon Dulay resulting in the latter's death; that the shooting occurred while Torzuela was
on duty; and that either SUPERGUARD and/or SAFEGUARD was Torzuela's employer and
responsible for his acts. This does not operate however, to establish that the defendants
below are liable. Whether or not the shooting was actually reckless and wanton or attended
by negligence and whether it was actually done within the scope of Torzuela's duties;
whether the private respondents SUPERGUARD and/or SAFEGUARD failed to exercise the
diligence of a good father of a family; and whether the defendants are actually liable, are
questions which can be better resolved after trial on the merits where each party can
present evidence to prove their respective allegations and defenses. In determining whether
the allegations of a complaint are sufficient to support a cause of action, it must be borne in
mind that the complaint does not have to establish or allege the facts proving the existence
of a cause of action at the outset; this will have to be done at the trial on the merits of the
case (Del Bros Hotel Corporation v. CA, supra). If the allegations in a complaint can furnish a
sufficient basis by which the complaint can be maintained, the same should not be
dismissed regardless of the defenses that may be assessed by the defendants (Rava Dev't.
Corp. v. CA, 211 SCRA 152 [1992] citing Consolidated Bank & Trust Corporation v. Court of
Appeals, 197 SCRA 663 [1991]). To sustain a motion to dismiss for lack of cause of action,
the complaint must show that the claim for relief does not exist rather than that a claim has
been defectively stated, is ambiguous, indefinite or uncertain (Azur v. Provincial Board, 27
SCRA 50 [1969]). Since the petitioners clearly sustained an injury to their rights under the
law, it would be more just to allow them to present evidence of such injury.
WHEREFORE, premises considered, the petition for review is hereby GRANTED. The decision
of the Court of Appeals as well as the Order of the Regional Trial Court dated April 13, 1989
are hereby REVERSED and SET ASIDE. Civil Case No. Q-89-1751 is remanded to the Regional
Trial Court for trial on the merits. This decision is immediately executory.
SO ORDERED.
Narvasa, C.J., Regalado, Puno and Mendoza, JJ., concur.

G.R. No. L-21438

September 28, 1966

AIR
FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.
Lichauco,
Picazo
and
Agcaoili
Bengzon Villegas and Zarraga for respondent R. Carrascoso.

for

petitioner.

SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael
Carrascoso P25,000.00 by way of moral damages; P10,000.00 as exemplary damages;
P393.20 representing the difference in fare between first class and tourist class for the
portion of the trip Bangkok-Rome, these various amounts with interest at the legal rate, from
the date of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the
costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's
plane ticket from P393.20 to P383.10, and voted to affirm the appealed decision "in all other
respects", with costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence of record",
are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left
Manila for Lourdes on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized agent,
Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane ticket
from Manila to Rome. From Manila to Bangkok, plaintiff travelled in "first class", but at
Bangkok, the Manager of the defendant airline forced plaintiff to vacate the "first
class" seat that he was occupying because, in the words of the witness Ernesto G.
Cuento, there was a "white man", who, the Manager alleged, had a "better right" to
the seat. When asked to vacate his "first class" seat, the plaintiff, as was to be
expected, refused, and told defendant's Manager that his seat would be taken over
his dead body; a commotion ensued, and, according to said Ernesto G. Cuento,
"many of the Filipino passengers got nervous in the tourist class; when they found
out that Mr. Carrascoso was having a hot discussion with the white man [manager],
they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to
the white man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly
gave his "first class" seat in the plane.3
1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of
respondent Court of Appeals. Petitioner charges that respondent court failed to make

complete findings of fact on all the issues properly laid before it. We are asked to consider
facts favorable to petitioner, and then, to overturn the appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be rendered by any
court of record without expressing therein clearly and distinctly the facts and the law on
which it is based". 5 This is echoed in the statutory demand that a judgment determining the
merits of the case shall state "clearly and distinctly the facts and the law on which it is
based"; 6 and that "Every decision of the Court of Appeals shall contain complete findings of
fact on all issues properly raised before it". 7
A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The
law, however, solely insists that a decision state the "essential ultimate facts" upon which
the court's conclusion is drawn. 9 A court of justice is not hidebound to write in its decision
every bit and piece of evidence 10 presented by one party and the other upon the issues
raised. Neither is it to be burdened with the obligation "to specify in the sentence the
facts"which a party "considered as proved". 11 This is but a part of the mental process from
which the Court draws the essential ultimate facts. A decision is not to be so clogged with
details such that prolixity, if not confusion, may result. So long as the decision of the Court
of Appeals contains the necessary facts to warrant its conclusions, it is no error for said court
to withhold therefrom "any specific finding of facts with respect to the evidence for the
defense". Because as this Court well observed, "There is no law that so requires". 12 Indeed,
"the mere failure to specify (in the decision) the contentions of the appellant and the
reasons for refusing to believe them is not sufficient to hold the same contrary to the
requirements of the provisions of law and the Constitution". It is in this setting that
in Manigque, it was held that the mere fact that the findings "were based entirely on the
evidence for the prosecution without taking into consideration or even mentioning the
appellant's side in the controversy as shown by his own testimony", would not vitiate the
judgment. 13 If the court did not recite in the decision the testimony of each witness for, or
each item of evidence presented by, the defeated party, it does not mean that the court has
overlooked such testimony or such item of evidence. 14 At any rate, the legal presumptions
are that official duty has been regularly performed, and that all the matters within an issue
in a case were laid before the court and passed upon by it. 15
Findings of fact, which the Court of Appeals is required to make, maybe defined as "the
written statement of the ultimate facts as found by the court ... and essential to support the
decision
and
judgment
rendered
thereon". 16They
consist
of
the
court's "conclusions" with respect to the determinative facts in issue". 17 A question of law,
upon the other hand, has been declared as "one which does not call for an examination of
the probative value of the evidence presented by the parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a
judgment of the Court of Appeals. 19 That judgment is conclusive as to the facts. It is not
appropriately the business of this Court to alter the facts or to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of fact of the Court
of Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner
a first class ticket. But petitioner asserts that said ticket did not represent the true and
complete intent and agreement of the parties; that said respondent knew that he did not
have confirmed reservations for first class on any specific flight, although he had tourist
class protection; that, accordingly, the issuance of a first class ticket was no guarantee that
he would have a first class ride, but that such would depend upon the availability of first
class seats.
These are matters which petitioner has thoroughly presented and discussed in its brief
before the Court of Appeals under its third assignment of error, which reads: "The trial court
erred in finding that plaintiff had confirmed reservations for, and a right to, first class seats
on the "definite" segments of his journey, particularly that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a first-class
ticket was no guarantee that the passenger to whom the same had been issued,
would be accommodated in the first-class compartment, for as in the case of plaintiff
he had yet to make arrangements upon arrival at every station for the necessary
first-class reservation. We are not impressed by such a reasoning. We cannot
understand how a reputable firm like defendant airplane company could have the
indiscretion to give out tickets it never meant to honor at all. It received the
corresponding amount in payment of first-class tickets and yet it allowed the
passenger to be at the mercy of its employees. It is more in keeping with the ordinary
course of business that the company should know whether or riot the tickets it issues
are to be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's
contention, thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no
question. Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C"
and "C-1", and defendant's own witness, Rafael Altonaga, confirmed plaintiff's testimony and
testified as follows:
Q. In these tickets there are marks "O.K." From what you know, what does this OK
mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx

xxx

xxx

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael
Altonaga that although plaintiff paid for, and was issued a "first class" airplane ticket, the

ticket was subject to confirmation in Hongkong. The court cannot give credit to the
testimony of said witnesses. Oral evidence cannot prevail over written evidence, and
plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the testimony of said witnesses,
and clearly show that the plaintiff was issued, and paid for, a first class ticket without any
reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that
the reservation for a "first class" accommodation for the plaintiff was confirmed. The court
cannot believe that after such confirmation defendant had a verbal understanding with
plaintiff that the "first class" ticket issued to him by defendant would be subject to
confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in
the amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was
affirmed by the Court of Appeals in all other respects. We hold the view that such a
judgment of affirmance has merged the judgment of the lower court. 24Implicit in that
affirmance is a determination by the Court of Appeals that the proceeding in the Court of
First Instance was free from prejudicial error and "all questions raised by the assignments of
error and all questions that might have been raised are to be regarded as finally adjudicated
against the appellant". So also, the judgment affirmed "must be regarded as free from all
error". 25 We reached this policy construction because nothing in the decision of the Court of
Appeals on this point would suggest that its findings of fact are in any way at war with those
of the trial court. Nor was said affirmance by the Court of Appeals upon a ground or grounds
different from those which were made the basis of the conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat,
notwithstanding the fact that seat availability in specific flights is therein confirmed, then an
air passenger is placed in the hollow of the hands of an airline. What security then can a
passenger have? It will always be an easy matter for an airline aided by its employees, to
strike out the very stipulations in the ticket, and say that there was a verbal agreement to
the contrary. What if the passenger had a schedule to fulfill? We have long learned that, as a
rule, a written document speaks a uniform language; that spoken word could be notoriously
unreliable. If only to achieve stability in the relations between passenger and air carrier,
adherence to the ticket so issued is desirable. Such is the case here. The lower courts
refused to believe the oral evidence intended to defeat the covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there are facts upon
which the Court of Appeals predicated the finding that respondent Carrascoso had a first
class ticket and was entitled to a first class seat at Bangkok, which is a stopover in the
Saigon to Beirut leg of the flight. 27 We perceive no "welter of distortions by the Court of
Appeals of petitioner's statement of its position", as charged by petitioner. 28 Nor do we
subscribe to petitioner's accusation that respondent Carrascoso "surreptitiously took a first
class seat to provoke an issue". 29 And this because, as petitioner states, Carrascoso went to
see the Manager at his office in Bangkok "to confirm my seat and because from Saigon I was
told again to see the Manager". 30 Why, then, was he allowed to take a first class seat in the
plane at Bangkok, if he had no seat? Or, if another had a better right to the seat?

4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim
is that Carrascoso's action is planted upon breach of contract; that to authorize an award for
moral damages there must be an averment of fraud or bad faith; 31 and that the decision of
the Court of Appeals fails to make a finding of bad faith. The pivotal allegations in the
complaint bearing on this issue are:
3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines
for a valuable consideration, the latter acting as general agents for and in behalf of
the defendant, under which said contract, plaintiff was entitled to, as defendant
agreed to furnish plaintiff, First Class passage on defendant's plane during the entire
duration of plaintiff's tour of Europe with Hongkong as starting point up to and until
plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon
to Bangkok, defendant furnished to the plaintiff First Class accommodation but only
after protestations, arguments and/or insistence were made by the plaintiff with
defendant's employees.
5. That finally, defendant failed to provide First Class passage, but instead furnished
plaintiff only TouristClass accommodations from Bangkok to Teheran and/or
Casablanca, ... the plaintiff has been compelledby defendant's employees to leave
the First Class accommodation berths at Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the inconvenience and
embarrassments brought by defendant's breach of contract was forced to take a Pan
American World Airways plane on his return trip from Madrid to Manila. 32
xxx

xxx

xxx

2. That likewise, as a result of defendant's failure to furnish First Class accommodations

aforesaid, plaintiff suffered inconveniences, embarrassments, and humiliations, thereby
causing plaintiff mental anguish, serious anxiety, wounded feelings, social humiliation, and
the like injury, resulting in moral damages in the amount of P30,000.00. 33
xxx

xxx

xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish
plaintiff a first class passage covering, amongst others, the Bangkok-Teheran leg; Second,
That said contract was breached when petitioner failed to furnish first class transportation at
Bangkok; and Third, that there was bad faith when petitioner's employee compelled
Carrascoso to leave his first class accommodation berth "after he was already, seated" and
to take a seat in the tourist class, by reason of which he suffered inconvenience,
embarrassments and humiliations, thereby causing him mental anguish, serious anxiety,
wounded feelings and social humiliation, resulting in moral damages. It is true that there is
no specific mention of the term bad faith in the complaint. But, the inference of bad faith is
there, it may be drawn from the facts and circumstances set forth therein. 34 The contract
was averred to establish the relation between the parties. But the stress of the action is put
on wrongful expulsion.

Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel
placed petitioner on guard on what Carrascoso intended to prove: That while sitting in the
plane in Bangkok, Carrascoso was oustedby petitioner's manager who gave his seat to a
white man; 35 and (b) evidence of bad faith in the fulfillment of the contract was presented
without objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to
whether or not there is sufficient averment in the complaint to justify an award for moral
damages. Deficiency in the complaint, if any, was cured by the evidence. An amendment
thereof to conform to the evidence is not even required. 36 On the question of bad faith, the
Court of Appeals declared:
That the plaintiff was forced out of his seat in the first class compartment of the
plane belonging to the defendant Air France while at Bangkok, and was transferred to
the tourist class not only without his consent but against his will, has been sufficiently
established by plaintiff in his testimony before the court, corroborated by the
corresponding entry made by the purser of the plane in his notebook which notation
reads as follows:
"First-class passenger was forced to go to the tourist class against his will, and
that the captain refused to intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger.
The captain of the plane who was asked by the manager of defendant company at
Bangkok to intervene even refused to do so. It is noteworthy that no one on behalf of
defendant ever contradicted or denied this evidence for the plaintiff. It could have
been easy for defendant to present its manager at Bangkok to testify at the trial of
the case, or yet to secure his disposition; but defendant did neither. 37
The Court of appeals further stated
Neither is there evidence as to whether or not a prior reservation was made by the
white man. Hence, if the employees of the defendant at Bangkok sold a first-class
ticket to him when all the seats had already been taken, surely the plaintiff should
not have been picked out as the one to suffer the consequences and to be subjected
to the humiliation and indignity of being ejected from his seat in the presence of
others. Instead of explaining to the white man the improvidence committed by
defendant's employees, the manager adopted the more drastic step of ousting the
plaintiff who was then safely ensconsced in his rightful seat. We are strengthened in
our belief that this probably was what happened there, by the testimony of
defendant's witness Rafael Altonaga who, when asked to explain the meaning of the
letters "O.K." appearing on the tickets of plaintiff, said "that the space is confirmed
for first class. Likewise, Zenaida Faustino, another witness for defendant, who was the
chief of the Reservation Office of defendant, testified as follows:
"Q How does the person in the ticket-issuing office know what reservation the
passenger has arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June
19, 1959)

In this connection, we quote with approval what the trial Judge has said on this point:
Why did the, using the words of witness Ernesto G. Cuento, "white man" have
a "better right" to the seat occupied by Mr. Carrascoso? The record is silent.
The defendant airline did not prove "any better", nay, any right on the part of
the "white man" to the "First class" seat that the plaintiff was occupying and
for which he paid and was issued a corresponding "first class" ticket.
If there was a justified reason for the action of the defendant's Manager in
Bangkok, the defendant could have easily proven it by having taken the
testimony of the said Manager by deposition, but defendant did not do so; the
presumption is that evidence willfully suppressed would be adverse if
produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances, the
Court is constrained to find, as it does find, that the Manager of the defendant
airline in Bangkok not merely asked but threatened the plaintiff to throw him
out of the plane if he did not give up his "first class" seat because the said
Manager wanted to accommodate, using the words of the witness Ernesto G.
Cuento, the "white man".38
It is really correct to say that the Court of Appeals in the quoted portion first
transcribed did not use the term "bad faith". But can it be doubted that the recital of
facts therein points to bad faith? The manager not only prevented Carrascoso from
enjoying his right to a first class seat; worse, he imposed his arbitrary will; he forcibly
ejected him from his seat, made him suffer the humiliation of having to go to the
tourist class compartment - just to give way to another passenger whose right
thereto has not been established. Certainly, this is bad faith. Unless, of course, bad
faith has assumed a meaning different from what is understood in law. For, "bad
faith" contemplates a "state of mind affirmatively operating with furtive design or
with some motive of self-interest or will or for ulterior purpose." 39
And if the foregoing were not yet sufficient, there is the express finding of bad faith in
the judgment of the Court of First Instance, thus:
The evidence shows that the defendant violated its contract of transportation
with plaintiff in bad faith, with the aggravating circumstances that defendant's
Manager in Bangkok went to the extent of threatening the plaintiff in the
presence of many passengers to have him thrown out of the airplane to give
the "first class" seat that he was occupying to, again using the words of the
witness Ernesto G. Cuento, a "white man" whom he (defendant's Manager)
wished to accommodate, and the defendant has not proven that this "white
man" had any "better right" to occupy the "first class" seat that the plaintiff
was occupying, duly paid for, and for which the corresponding "first class"
ticket was issued by the defendant to him.40
5. The responsibility of an employer for the tortious act of its employees need not be
essayed. It is well settled in law. 41 For the willful malevolent act of petitioner's manager,
petitioner, his employer, must answer. Article 21 of the Civil Code says:

ART. 21. Any person who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the
provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in kind and degree from any other
contractual relation. 43And this, because of the relation which an air-carrier sustains with the
public. Its business is mainly with the travelling public. It invites people to avail of the
comforts and advantages it offers. The contract of air carriage, therefore, generates a
relation attended with a public duty. Neglect or malfeasance of the carrier's employees,
naturally, could give ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be treated by the
carrier's employees with kindness, respect, courtesy and due consideration. They are
entitled to be protected against personal misconduct, injurious language, indignities and
abuses from such employees. So it is, that any rule or discourteous conduct on the part of
employees towards a passenger gives the latter an action for damages against the carrier. 44
Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of
contract and a tort, giving a right of action for its agent in the presence of third persons to
falsely notify her that the check was worthless and demand payment under threat of
ejection, though the language used was not insulting and she was not ejected." 46 And this,
because, although the relation of passenger and carrier is "contractual both in origin and
nature" nevertheless "the act that breaks the contract may be also a tort". 47 And in another
case, "Where a passenger on a railroad train, when the conductor came to collect his fare
tendered him the cash fare to a point where the train was scheduled not to stop, and told
him that as soon as the train reached such point he would pay the cash fare from that point
to destination, there was nothing in the conduct of the passenger which justified the
conductor in using insulting language to him, as by calling him a lunatic," 48 and the
Supreme Court of South Carolina there held the carrier liable for the mental suffering of said
passenger.1awphl.nt
Petitioner's contract with Carrascoso is one attended with public duty. The stress of
Carrascoso's action as we have said, is placed upon his wrongful expulsion. This is a
violation of public duty by the petitioner air carrier a case of quasi-delict. Damages are
proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus
Q You mentioned about an attendant. Who is that attendant and purser?
A When we left already that was already in the trip I could not help it. So one of
the flight attendants approached me and requested from me my ticket and I said,
What for? and she said, "We will note that you transferred to the tourist class". I said,
"Nothing of that kind. That is tantamount to accepting my transfer." And I also said,
"You are not going to note anything there because I am protesting to this transfer".

Q Was she able to note it?

A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel uncomfortable and you don't have
enough leg room, I stood up and I went to the pantry that was next to me and the
purser was there. He told me, "I have recorded the incident in my notebook." He read
it and translated it to me because it was recorded in French "First class
passenger was forced to go to the tourist class against his will, and that the captain
refused to intervene."
Mr. VALTE
I move to strike out the last part of the testimony of the witness because the best
evidence would be the notes. Your Honor.
COURT
I will allow that as part of his testimony.

49

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in
his notebook reading "First class passenger was forced to go to the tourist class against his
will, and that the captain refused to intervene" is predicated upon evidence [Carrascoso's
testimony above] which is incompetent. We do not think so. The subject of inquiry is not the
entry, but the ouster incident. Testimony on the entry does not come within the proscription
of the best evidence rule. Such testimony is admissible. 49a
Besides, from a reading of the transcript just quoted, when the dialogue happened, the
impact of the startling occurrence was still fresh and continued to be felt. The excitement
had not as yet died down. Statements then, in this environment, are admissible as part of
the res gestae. 50 For, they grow "out of the nervous excitement and mental and physical
condition of the declarant". 51 The utterance of the purser regarding his entry in the
notebook was spontaneous, and related to the circumstances of the ouster incident. Its
trustworthiness has been guaranteed. 52 It thus escapes the operation of the hearsay rule. It
forms part of the res gestae.
At all events, the entry was made outside the Philippines. And, by an employee of petitioner.
It would have been an easy matter for petitioner to have contradicted Carrascoso's
testimony. If it were really true that no such entry was made, the deposition of the purser
could have cleared up the matter.
We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.
8. Exemplary damages are well awarded. The Civil Code gives the court ample power to
grant exemplary damages in contracts and quasi- contracts. The only condition is that
defendant should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent

manner." 53 The manner of ejectment of respondent Carrascoso from his first class seat fits
into this legal precept. And this, in addition to moral damages. 54
9. The right to attorney's fees is fully established. The grant of exemplary damages justifies
a similar judgment for attorneys' fees. The least that can be said is that the courts below felt
that it is but just and equitable that attorneys' fees be given. 55 We do not intend to break
faith with the tradition that discretion well exercised as it was here should not be
disturbed.
10. Questioned as excessive are the amounts decreed by both the trial court and the Court
of Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages,
and P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial
court. 56 The Court of Appeals did not interfere with the same. The dictates of good sense
suggest that we give our imprimatur thereto. Because, the facts and circumstances point to
the reasonableness thereof.57
On balance, we say that the judgment of the Court of Appeals does not suffer from
reversible error. We accordingly vote to affirm the same. Costs against petitioner. So
ordered.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and Castro, JJ.,
concur.
Bengzon, J.P., J., took no part.

G.R. No. L-4977

March 22, 1910

DAVID
TAYLOR, plaintiff-appellee,
vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.
W.
H.
W. L. Wright, for appellee.

Lawrence,

for

appellant.

CARSON, J.:
An action to recover damages for the loss of an eye and other injuries, instituted by David
Taylor, a minor, by his father, his nearest relative.
The defendant is a foreign corporation engaged in the operation of a street railway and an
electric light system in the city of Manila. Its power plant is situated at the eastern end of a
small island in the Pasig River within the city of Manila, known as the Isla del Provisor. The
power plant may be reached by boat or by crossing a footbridge, impassable for vehicles, at
the westerly end of the island.
The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15
years of age, the son of a mechanical engineer, more mature than the average boy of his
age, and having considerable aptitude and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12
years of age, crossed the footbridge to the Isla del Provisor, for the purpose of visiting one
Murphy, an employee of the defendant, who and promised to make them a cylinder for a
miniature engine. Finding on inquiry that Mr. Murphy was not in his quarters, the boys,
impelled apparently by youthful curiosity and perhaps by the unusual interest which both
seem to have taken in machinery, spent some time in wandering about the company's
premises. The visit was made on a Sunday afternoon, and it does not appear that they saw
or spoke to anyone after leaving the power house where they had asked for Mr. Murphy.
After watching the operation of the travelling crane used in handling the defendant's coal,
they walked across the open space in the neighborhood of the place where the company
dumped in the cinders and ashes from its furnaces. Here they found some twenty or thirty
brass fulminating caps scattered on the ground. These caps are approximately of the size
and appearance of small pistol cartridges and each has attached to it two long thin wires by
means of which it may be discharged by the use of electricity. They are intended for use in
the explosion of blasting charges of dynamite, and have in themselves a considerable
explosive power. After some discussion as to the ownership of the caps, and their right to
take them, the boys picked up all they could find, hung them on stick, of which each took
end, and carried them home. After crossing the footbridge, they met a little girl named Jessie
Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The boys
then made a series of experiments with the caps. They trust the ends of the wires into an
electric light socket and obtained no result. They next tried to break the cap with a stone
and failed. Manuel looked for a hammer, but could not find one. Then they opened one of
the caps with a knife, and finding that it was filled with a yellowish substance they got
matches, and David held the cap while Manuel applied a lighted match to the contents. An
explosion followed, causing more or less serious injuries to all three. Jessie, who when the

boys proposed putting a match to the contents of the cap, became frightened and started to
run away, received a slight cut in the neck. Manuel had his hand burned and wounded, and
David was struck in the face by several particles of the metal capsule, one of which injured
his right eye to such an extent as to the necessitate its removal by the surgeons who were
called in to care for his wounds.
The evidence does definitely and conclusively disclose how the caps came to be on the
defendant's premises, nor how long they had been there when the boys found them. It
appears, however, that some months before the accident, during the construction of the
defendant's plant, detonating caps of the same size and kind as those found by the boys
were used in sinking a well at the power plant near the place where the caps were found;
and it also appears that at or about the time when these caps were found, similarly caps
were in use in the construction of an extension of defendant's street car line to Fort William
McKinley. The caps when found appeared to the boys who picked them up to have been lying
for a considerable time, and from the place where they were found would seem to have
been discarded as detective or worthless and fit only to be thrown upon the rubbish heap.
No measures seems to have been adopted by the defendant company to prohibit or prevent
visitors from entering and walking about its premises unattended, when they felt disposed
so to do. As admitted in defendant counsel's brief, "it is undoubtedly true that children in
their play sometimes crossed the foot bridge to the islands;" and, we may add, roamed
about at will on the uninclosed premises of the defendant, in the neighborhood of the place
where the caps were found. There is evidence that any effort ever was made to forbid these
children from visiting the defendant company's premises, although it must be assumed that
the company or its employees were aware of the fact that they not infrequently did so.
Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of
the interisland transports. Later he took up work in his father's office, learning mechanical
drawing and mechanical engineering. About a month after his accident he obtained
employment as a mechanical draftsman and continued in that employment for six months at
a salary of P2.50 a day; and it appears that he was a boy of more than average intelligence,
taller and more mature both mentally and physically than most boys of fifteen.
The facts set out in the foregoing statement are to our mind fully and conclusively
established by the evidence of record, and are substantially admitted by counsel. The only
questions of fact which are seriously disputed are plaintiff's allegations that the caps which
were found by plaintiff on defendant company's premises were the property of the
defendant, or that they had come from its possession and control, and that the company or
some of its employees left them exposed on its premises at the point where they were
found.
The evidence in support of these allegations is meager, and the defendant company,
apparently relying on the rule of law which places the burden of proof of such allegations
upon the plaintiff, offered no evidence in rebuttal, and insists that plaintiff failed in his proof.
We think, however, that plaintiff's evidence is sufficient to sustain a finding in accord with his
allegations in this regard.

It was proven that caps, similar to those found by plaintiff, were used, more or less
extensively, on the McKinley extension of the defendant company's track; that some of
these caps were used in blasting a well on the company's premises a few months before the
accident; that not far from the place where the caps were found the company has a
storehouse for the materials, supplies and so forth, used by it in its operations as a street
railway and a purveyor of electric light; and that the place, in the neighborhood of which the
caps were found, was being used by the company as a sort of dumping ground for ashes and
cinders. Fulminating caps or detonators for the discharge by electricity of blasting charges
by dynamite are not articles in common use by the average citizen, and under all the
circumstances, and in the absence of all evidence to the contrary, we think that the
discovery of twenty or thirty of these caps at the place where they were found by the
plaintiff on defendant's premises fairly justifies the inference that the defendant company
was either the owner of the caps in question or had the caps under its possession and
control. We think also that the evidence tends to disclose that these caps or detonators were
willfully and knowingly thrown by the company or its employees at the spot where they were
found, with the expectation that they would be buried out of the sight by the ashes which it
was engaged in dumping in that neighborhood, they being old and perhaps defective; and,
however this may be, we are satisfied that the evidence is sufficient to sustain a finding that
the company or some of its employees either willfully or through an oversight left them
exposed at a point on its premises which the general public, including children at play,
where not prohibited from visiting, and over which the company knew or ought to have
known that young boys were likely to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative value of the facts on
which these conclusions are based by intimidating or rather assuming that the blasting work
on the company's well and on its McKinley extension was done by contractors. It was
conclusively proven, however, that while the workman employed in blasting the well was
regularly employed by J. G. White and Co., a firm of contractors, he did the work on the well
directly and immediately under the supervision and control of one of defendant company's
foremen, and there is no proof whatever in the record that the blasting on the McKinley
extension was done by independent contractors. Only one witness testified upon this point,
and while he stated that he understood that a part of this work was done by contract, he
could not say so of his own knowledge, and knew nothing of the terms and conditions of the
alleged contract, or of the relations of the alleged contractor to the defendant company. The
fact having been proven that detonating caps were more or less extensively employed on
work done by the defendant company's directions and on its behalf, we think that the
company should have introduced the necessary evidence to support its contention if it
wished to avoid the not unreasonable inference that it was the owner of the material used in
these operations and that it was responsible for tortious or negligent acts of the agents
employed therein, on the ground that this work had been intrusted to independent
contractors as to whose acts the maxim respondent superior should not be applied. If the
company did not in fact own or make use of caps such as those found on its premises, as
intimated by counsel, it was a very simple matter for it to prove that fact, and in the
absence of such proof we think that the other evidence in the record sufficiently establishes
the contrary, and justifies the court in drawing the reasonable inference that the caps found
on its premises were its property, and were left where they were found by the company or
some of its employees.

Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor,
upon the provisions of article 1089 of the Civil Code read together with articles 1902, 1903,
and 1908 of that code.
ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit
acts and omissions or by those in which any kind of fault or negligence occurs.
ART. 1902 A person who by an act or omission causes damage to another when there
is fault or negligence shall be obliged to repair the damage so done.
ART. 1903 The obligation imposed by the preceding article is demandable, not only
for personal acts and omissions, but also for those of the persons for whom they
should be responsible.
The father, and on his death or incapacity the mother, is liable for the damages
caused by the minors who live with them.
xxx

xxx

xxx

Owners or directors of an establishment or enterprise are equally liable for damages

caused by their employees in the service of the branches in which the latter may be
employed or on account of their duties.
xxx

xxx

xxx

The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damage.
ART. 1908 The owners shall also be liable for the damage caused
1 By the explosion of machines which may not have been cared for with due
diligence, and for kindling of explosive substances which may not have been placed
in a safe and proper place.
Counsel for the defendant and appellant rests his appeal strictly upon his contention that the
facts proven at the trial do not established the liability of the defendant company under the
provisions of these articles, and since we agree with this view of the case, it is not necessary
for us to consider the various questions as to form and the right of action (analogous to
those raised in the case of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which
would, perhaps, be involved in a decision affirming the judgment of the court below.
We agree with counsel for appellant that under the Civil Code, as under the generally
accepted doctrine in the United States, the plaintiff in an action such as that under
consideration, in order to establish his right to a recovery, must establish by competent
evidence:
(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally, or some person for
whose acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the damage.
These proposition are, of course, elementary, and do not admit of discussion, the real
difficulty arising in the application of these principles to the particular facts developed in the
case under consideration.
It is clear that the accident could not have happened and not the fulminating caps been left
exposed at the point where they were found, or if their owner had exercised due care in
keeping them in an appropriate place; but it is equally clear that plaintiff would not have
been injured had he not, for his own pleasure and convenience, entered upon the
defendant's premises, and strolled around thereon without the express permission of the
defendant, and had he not picked up and carried away the property of the defendant which
he found on its premises, and had he not thereafter deliberately cut open one of the caps
and applied a match to its contents.
But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his
entry upon defendant company's premises, and the intervention of his action between the
negligent act of defendant in leaving the caps exposed on its premises and the accident
which resulted in his injury should not be held to have contributed in any wise to the
accident, which should be deemed to be the direct result of defendant's negligence in
leaving the caps exposed at the place where they were found by the plaintiff, and this latter
the proximate cause of the accident which occasioned the injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of
the courts of last resort in the United States in the cases known as the "Torpedo" and
"Turntable" cases, and the cases based thereon.
In a typical cases, the question involved has been whether a railroad company is liable for
an injury received by an infant of tender years, who from mere idle curiosity, or for the
purposes of amusement, enters upon the railroad company's premises, at a place where the
railroad company knew, or had good reason to suppose, children would be likely to come,
and there found explosive signal torpedoes left unexposed by the railroad company's
employees, one of which when carried away by the visitor, exploded and injured him; or
where such infant found upon the premises a dangerous machine, such as a turntable, left in
such condition as to make it probable that children in playing with it would be exposed to
accident or injury therefrom and where the infant did in fact suffer injury in playing with such
machine.
In these, and in great variety of similar cases, the great weight of authority holds the owner
of the premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal
question was whether a railroad company was liable for in injury received by an infant while
upon its premises, from idle curiosity, or for purposes of amusement, if such injury was,
under circumstances, attributable to the negligence of the company), the principles on

which these cases turn are that "while a railroad company is not bound to the same degree
of care in regard to mere strangers who are unlawfully upon its premises that it owes to
passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries
arising from its negligence or from its tortious acts;" and that "the conduct of an infant of
tender years is not to be judged by the same rule which governs that of adult. While it is the
general rule in regard to an adult that to entitle him to recover damages for an injury
resulting from the fault or negligence of another he must himself have been free from fault,
such is not the rule in regard to an infant of tender years. The care and caution required of a
child is according to his maturity and capacity only, and this is to be determined in each
case by the circumstances of the case."
The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and
sharply criticized in several state courts, and the supreme court of Michigan in the case
of Ryan vs. Towar (128 Mich., 463) formally repudiated and disapproved the doctrine of the
Turntable cases, especially that laid down in Railroad Company vs. Stout, in a very able
decision wherein it held, in the language of the syllabus: (1) That the owner of the land is not
liable to trespassers thereon for injuries sustained by them, not due to his wanton or willful
acts; (2) that no exception to this rule exists in favor of children who are injured by
dangerous machinery naturally calculated to attract them to the premises; (3) that an
invitation or license to cross the premises of another can not be predicated on the mere fact
that no steps have been taken to interfere with such practice; (4) that there is no difference
between children and adults as to the circumstances that will warrant the inference of an
invitation or a license to enter upon another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in
by the courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154
Mass., 349). And the doctrine has been questioned in Wisconsin, Pennsylvania, New
Hampshire, and perhaps in other States.
On the other hand, many if not most of the courts of last resort in the United States, citing
and approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1
Q. B., 29, 35, 36), lay down the rule in these cases in accord with that announced in
the Railroad Company vs. Stout (supra), and the Supreme Court of the United States, in a
unanimous opinion delivered by Justice Harlan in the case of Union Pacific Railway Co. vs.
McDonal and reconsidered the doctrine laid down in Railroad Co. vs. Stout, and after an
exhaustive and critical analysis and review of many of the adjudged cases, both English and
American, formally declared that it adhered "to the principles announced in the case
of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The
plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure, entered upon and
visited the defendant's premises, without defendant's express permission or invitation, and
while there, was by accident injured by falling into a burning slack pile of whose existence he
had no knowledge, but which had been left by defendant on its premises without any fence
around it or anything to give warning of its dangerous condition, although defendant knew or
had reason the interest or curiosity of passers-by. On these facts the court held that the
plaintiff could not be regarded as a mere trespasser, for whose safety and protection while

on the premises in question, against the unseen danger referred to, the defendant was
under no obligation to make provision.
We quote at length from the discussion by the court of the application of the principles
involved to the facts in that case, because what is said there is strikingly applicable in the
case at bar, and would seem to dispose of defendant's contention that, the plaintiff in this
case being a trespasser, the defendant company owed him no duty, and in no case could be
held liable for injuries which would not have resulted but for the entry of plaintiff on
defendant's premises.
We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to
the case now before us, they require us to hold that the defendant was guilty of
negligence in leaving unguarded the slack pile, made by it in the vicinity of its depot
building. It could have forbidden all persons from coming to its coal mine for
purposes merely of curiosity and pleasure. But it did not do so. On the contrary, it
permitted all, without regard to age, to visit its mine, and witness its operation. It
knew that the usual approach to the mine was by a narrow path skirting its slack pit,
close to its depot building, at which the people of the village, old and young, would
often assemble. It knew that children were in the habit of frequenting that locality
and playing around the shaft house in the immediate vicinity of the slack pit. The
slightest regard for the safety of these children would have suggested that they were
in danger from being so near a pit, beneath the surface of which was concealed
(except when snow, wind, or rain prevailed) a mass of burning coals into which a
child might accidentally fall and be burned to death. Under all the circumstances, the
railroad company ought not to be heard to say that the plaintiff, a mere lad, moved
by curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom
it owed no duty, or for whose protection it was under no obligation to make
provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps,
baited with flesh, in his own ground, so near to a highway, or to the premises of
another, that dogs passing along the highway, or kept in his neighbors premises,
would probably be attracted by their instinct into the traps, and in consequence of
such act his neighbor's dogs be so attracted and thereby injured, an action on the
case would lie. "What difference," said Lord Ellenborough, C.J., "is there in reason
between drawing the animal into the trap by means of his instinct which he can not
resist, and putting him there by manual force?" What difference, in reason we may
observe in this case, is there between an express license to the children of this
village to visit the defendant's coal mine, in the vicinity of its slack pile, and an
implied license, resulting from the habit of the defendant to permit them, without
objection or warning, to do so at will, for purposes of curiosity or pleasure? Referring
it the case of Townsend vs. Wathen, Judge Thompson, in his work on the Law of
Negligence, volume 1, page 305, note, well says: "It would be a barbarous rule of law
that would make the owner of land liable for setting a trap thereon, baited with
stinking meat, so that his neighbor's dog attracted by his natural instinct, might run
into it and be killed, and which would exempt him from liability for the consequence
of leaving exposed and unguarded on his land a dangerous machine, so that his

neighbor's child attracted to it and tempted to intermeddle with it by instincts equally

strong, might thereby be killed or maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case
of Powers vs. Harlow (53 Mich., 507), said that (p. 515):
Children, wherever they go, must be expected to act upon childlike instincts and
impulses; and others who are chargeable with a duty of care and caution toward
them must calculate upon this, and take precautions accordingly. If they leave
exposed to the observation of children anything which would be tempting to them,
and which they in their immature judgment might naturally suppose they were at
liberty to handle or play with, they should expect that liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied
invitation to visit the premises of another, says:
In the case of young children, and other persons not fully sui juris, an implied license
might sometimes arise when it would not on behalf of others. Thus leaving a
tempting thing for children to play with exposed, where they would be likely to gather
for that purpose, may be equivalent to an invitation to them to make use of it; and,
perhaps, if one were to throw away upon his premises, near the common way, things
tempting to children, the same implication should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United States to its conclusion in the
cases of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is
not less cogent and convincing in this jurisdiction than in that wherein those cases
originated. Children here are actuated by similar childish instincts and impulses. Drawn by
curiosity and impelled by the restless spirit of youth, boys here as well as there will usually
be found whenever the public is permitted to congregate. The movement of machinery, and
indeed anything which arouses the attention of the young and inquiring mind, will draw
them to the neighborhood as inevitably as does the magnet draw the iron which comes
within the range of its magnetic influence. The owners of premises, therefore, whereon
things attractive to children are exposed, or upon which the public are expressly or impliedly
permitted to enter or upon which the owner knows or ought to know children are likely to
roam about for pastime and in play, " must calculate upon this, and take precautions
accordingly." In such cases the owner of the premises can not be heard to say that because
the child has entered upon his premises without his express permission he is a trespasser to
whom the owner owes no duty or obligation whatever. The owner's failure to take reasonable
precautions to prevent the child from entering his premises at a place where he knows or
ought to know that children are accustomed to roam about of to which their childish instincts
and impulses are likely to attract them is at least equivalent to an implied license to enter,
and where the child does enter under such conditions the owner's failure to take reasonable
precautions to guard the child against injury from unknown or unseen dangers, placed upon
such premises by the owner, is clearly a breach of duty, responsible, if the child is actually
injured, without other fault on its part than that it had entered on the premises of a stranger
without his express invitation or permission. To hold otherwise would be expose all the
children in the community to unknown perils and unnecessary danger at the whim of the

owners or occupants of land upon which they might naturally and reasonably be expected to
enter.
This conclusion is founded on reason, justice, and necessity, and neither is contention that a
man has a right to do what will with his own property or that children should be kept under
the care of their parents or guardians, so as to prevent their entering on the premises of
others is of sufficient weight to put in doubt. In this jurisdiction as well as in the United
States all private property is acquired and held under the tacit condition that it shall not be
so used as to injure the equal rights and interests of the community (see U. S. vs.
Toribio,1 No. 5060, decided January 26, 1910), and except as to infants of very tender years
it would be absurd and unreasonable in a community organized as is that in which we lived
to hold that parents or guardian are guilty of negligence or imprudence in every case
wherein they permit growing boys and girls to leave the parental roof unattended, even if in
the event of accident to the child the negligence of the parent could in any event be
imputed to the child so as to deprive it a right to recover in such cases a point which we
neither discuss nor decide.
But while we hold that the entry of the plaintiff upon defendant's property without
defendant's express invitation or permission would not have relieved defendant from
responsibility for injuries incurred there by plaintiff, without other fault on his part, if such
injury were attributable to the negligence of the defendant, we are of opinion that under all
the circumstances of this case the negligence of the defendant in leaving the caps exposed
on its premises was not the proximate cause of the injury received by the plaintiff, which
therefore was not, properly speaking, "attributable to the negligence of the defendant," and,
on the other hand, we are satisfied that plaintiffs action in cutting open the detonating cap
and putting match to its contents was the proximate cause of the explosion and of the
resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is not civilly
responsible for the injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of
plaintiff's youth the intervention of his action between the negligent act of the defendant in
leaving the caps exposed on its premises and the explosion which resulted in his injury
should not be held to have contributed in any wise to the accident; and it is because we can
not agree with this proposition, although we accept the doctrine of the Turntable and
Torpedo cases, that we have thought proper to discuss and to consider that doctrine at
length in this decision. As was said in case of Railroad Co. vs. Stout (supra), "While it is the
general rule in regard to an adult that to entitle him to recover damages for an injury
resulting from the fault or negligence of another he must himself have been free from fault,
such is not the rule in regard to an infant of tender years. The care and caution required of a
child is according to his maturity and capacity only, and this is to be determined in each
case by the circumstances of the case." As we think we have shown, under the reasoning on
which rests the doctrine of the Turntable and Torpedo cases, no fault which would relieve
defendant of responsibility for injuries resulting from its negligence can be attributed to the
plaintiff, a well-grown boy of 15 years of age, because of his entry upon defendant's
uninclosed premises without express permission or invitation' but it is wholly different
question whether such youth can be said to have been free from fault when he willfully and
deliberately cut open the detonating cap, and placed a match to the contents, knowing, as
he undoubtedly did, that his action would result in an explosion. On this point, which must

be determined by "the particular circumstances of this case," the doctrine laid down in the
Turntable and Torpedo cases lends us no direct aid, although it is worthy of observation that
in all of the "Torpedo" and analogous cases which our attention has been directed, the
record discloses that the plaintiffs, in whose favor judgments have been affirmed, were of
such tender years that they were held not to have the capacity to understand the nature or
character of the explosive instruments which fell into their hands.
In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more
mature both mentally and physically than the average boy of his age; he had been to sea as
a cabin boy; was able to earn P2.50 a day as a mechanical draftsman thirty days after the
injury was incurred; and the record discloses throughout that he was exceptionally well
qualified to take care of himself. The evidence of record leaves no room for doubt that,
despite his denials on the witness stand, he well knew the explosive character of the cap
with which he was amusing himself. The series of experiments made by him in his attempt
to produce an explosion, as described by the little girl who was present, admit of no other
explanation. His attempt to discharge the cap by the use of electricity, followed by his
efforts to explode it with a stone or a hammer, and the final success of his endeavors
brought about by the application of a match to the contents of the caps, show clearly that he
knew what he was about. Nor can there be any reasonable doubt that he had reason to
anticipate that the explosion might be dangerous, in view of the fact that the little girl, 9
years of age, who was within him at the time when he put the match to the contents of the
cap, became frightened and ran away.
True, he may not have known and probably did not know the precise nature of the explosion
which might be expected from the ignition of the contents of the cap, and of course he did
not anticipate the resultant injuries which he incurred; but he well knew that a more or less
dangerous explosion might be expected from his act, and yet he willfully, recklessly, and
knowingly produced the explosion. It would be going far to say that "according to his
maturity and capacity" he exercised such and "care and caution" as might reasonably be
required of him, or that defendant or anyone else should be held civilly responsible for
injuries incurred by him under such circumstances.
The law fixes no arbitrary age at which a minor can be said to have the necessary capacity
to understand and appreciate the nature and consequences of his own acts, so as to make it
negligence on his part to fail to exercise due care and precaution in the commission of such
acts; and indeed it would be impracticable and perhaps impossible so to do, for in the very
nature of things the question of negligence necessarily depends on the ability of the minor
to understand the character of his own acts and their consequences; and the age at which a
minor can be said to have such ability will necessarily depends of his own acts and their
consequences; and at the age at which a minor can be said to have such ability will
necessarily vary in accordance with the varying nature of the infinite variety of acts which
may be done by him. But some idea of the presumed capacity of infants under the laws in
force in these Islands may be gathered from an examination of the varying ages fixed by our
laws at which minors are conclusively presumed to be capable of exercising certain rights
and incurring certain responsibilities, though it can not be said that these provisions of law
are of much practical assistance in cases such as that at bar, except so far as they illustrate
the rule that the capacity of a minor to become responsible for his own acts varies with the
varying circumstances of each case. Under the provisions of the Penal Code a minor over

fifteen years of age is presumed to be capable of committing a crime and is to held

criminally responsible therefore, although the fact that he is less than eighteen years of age
will be taken into consideration as an extenuating circumstance (Penal Code, arts. 8 and 9).
At 10 years of age a child may, under certain circumstances, choose which parent it prefers
to live with (Code of Civil Procedure, sec. 771). At 14 may petition for the appointment of a
guardian (Id., sec. 551), and may consent or refuse to be adopted (Id., sec. 765). And males
of 14 and females of 12 are capable of contracting a legal marriage (Civil Code, art. 83; G.
O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be
sensible of the danger to which he exposed himself when he put the match to the contents
of the cap; that he was sui juris in the sense that his age and his experience qualified him to
understand and appreciate the necessity for the exercise of that degree of caution which
would have avoided the injury which resulted from his own deliberate act; and that the
injury incurred by him must be held to have been the direct and immediate result of his own
willful and reckless act, so that while it may be true that these injuries would not have been
incurred but for the negligence act of the defendant in leaving the caps exposed on its
premises, nevertheless plaintiff's own act was the proximate and principal cause of the
accident which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur
sentire. (Digest, book 50, tit. 17 rule 203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him through
his own fault, and that he can not demand reparation therefor from another. (Law 25,
tit. 5, Partida 3.)
And they even said that when a man received an injury through his own acts the
grievance should be against himself and not against another. (Law 2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury through his own acts the
grievance should be against himself and not against another. (Law 2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code which expressly lays down
the law touching contributory negligence in this jurisdiction, nevertheless, the interpretation
placed upon its provisions by the supreme court of Spain, and by this court in the case
of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in
the case at bar the right to recover damages from the defendant, in whole or in part, for the
injuries sustained by him.
The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia
Civil, 391), is directly in point. In that case the court said:
According to the doctrine expressed in article 1902 of the Civil Code, fault or
negligence is a source of obligation when between such negligence and the injury
there exists the relation of cause and effect; but if the injury produced should not be

the result of acts or omissions of a third party, the latter has no obligation to repair
the same, although such acts or omission were imprudent or unlawful, and much less
when it is shown that the immediate cause of the injury was the negligence of the
injured party himself.
The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault
or negligence is not sufficient without proof that it, and no other cause, gave rise to the
damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing under that title in
his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the
decision of March 7, 1902 of the Civil Code, fault or negligence gives rise to an
obligation when between it and the damage there exists the relation of cause and
effect; but if the damage caused does not arise from the acts or omissions of a third
person, there is no obligation to make good upon the latter, even though such acts or
omissions be imprudent or illegal, and much less so when it is shown that the
immediate cause of the damage has been the recklessness of the injured party
himself.
And again
In accordance with the fundamental principle of proof, that the burden thereof is
upon the plaintiff, it is apparent that it is duty of him who shall claim damages to
establish their existence. The decisions of April 9, 1896, and March 18, July, and
September 27, 1898, have especially supported the principle, the first setting forth in
detail the necessary points of the proof, which are two: An act or omission on the part
of the person who is to be charged with the liability, and the production of the
damage by said act or omission.
This includes, by inference, the establishment of a relation of cause or effect between
the act or omission and the damage; the latter must be the direct result of one of the
first two. As the decision of March 22, 1881, said, it is necessary that the damages
result immediately and directly from an act performed culpably and wrongfully;
"necessarily presupposing a legal ground for imputability." (Decision of October 29,
1887.)
Negligence is not presumed, but must be proven by him who alleges it.
(Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)
Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely
settled in this court in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific
Co. (supra), wherein we held that while "There are many cases (personal injury cases) was
exonerated," on the ground that "the negligence of the plaintiff was the immediate cause of
the casualty" (decisions of the 15th of January, the 19th of February, and the 7th of March,

1902, stated in Alcubilla's Index of that year); none of the cases decided by the supreme
court of Spain "define the effect to be given the negligence of its causes, though not the
principal one, and we are left to seek the theory of the civil law in the practice of other
countries;" and in such cases we declared that law in this jurisdiction to require the
application of "the principle of proportional damages," but expressly and definitely denied
the right of recovery when the acts of the injured party were the immediate causes of the
accident.
The doctrine as laid down in that case is as follows:
Difficulty seems to be apprehended in deciding which acts of the injured party shall
be considered immediate causes of the accident. The test is simple. Distinction must
be made between the accident and the injury, between the event itself, without
which there could have been no accident, and those acts of the victim not entering
into it, independent of it, but contributing to his own proper hurt. For instance, the
cause of the accident under review was the displacement of the crosspiece or the
failure to replace it. This produces the event giving occasion for damagesthat is,
the sinking of the track and the sliding of the iron rails. To this event, the act of the
plaintiff in walking by the side of the car did not contribute, although it was an
element of the damage which came to himself. Had the crosspiece been out of place
wholly or partly through his act or omission of duty, that would have been one of the
determining causes of the event or accident, for which he would have been
responsible. Where he contributes to the principal occurrence, as one of its
determining factors, he can not recover. Where, in conjunction with the occurrence,
he contributes only to his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.
We think it is quite clear that under the doctrine thus stated, the immediate cause of the
explosion, the accident which resulted in plaintiff's injury, was in his own act in putting a
match to the contents of the cap, and that having "contributed to the principal occurrence,
as one of its determining factors, he can not recover."
We have not deemed it necessary to examine the effect of plaintiff's action in picking up
upon defendant's premises the detonating caps, the property of defendant, and carrying the
relation of cause and effect between the negligent act or omission of the defendant in
leaving the caps exposed on its premises and the injuries inflicted upon the plaintiff by the
explosion of one of these caps. Under the doctrine of the Torpedo cases, such action on the
part of an infant of very tender years would have no effect in relieving defendant of
responsibility, but whether in view of the well-known fact admitted in defendant's brief that
"boys are snappers-up of unconsidered trifles," a youth of the age and maturity of plaintiff
should be deemed without fault in picking up the caps in question under all the
circumstances of this case, we neither discuss nor decide.
Twenty days after the date of this decision let judgment be entered reversing the judgment
of the court below, without costs to either party in this instance, and ten days thereafter let
the record be returned to the court wherein it originated, where the judgment will be entered

in favor of the defendant for the costs in first instance and the complaint dismissed without
day. So ordered.
Arellano,
C.J.,
Torres
Johnson, J., concurs in the result.

and

Moreland,

JJ., concur.

G.R. No. 129792 December 21, 1999

JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA
PANELO, petitioners,
vs.
HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R.
AGUILAR, respondents.

DAVIDE, JR., J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioners seek
the reversal of the 17 June 1996 decision 1 of the Court of Appeals in C.A. G.R. No. CV 37937
and the resolution 2 denying their motion for reconsideration. The assailed decision set aside
the 15 January 1992 judgment of the Regional Trial Court (RTC), Makati City, Branch 60 in
Civil Case No. 7119 and ordered petitioners to pay damages and attorney's fees to private
respondents Conrado and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvel's Department Store, Makati City.
Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the store's branch manager,
operations manager, and supervisor, respectively. Private respondents are spouses and the
parents of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvel's
Department Store, Makati City. CRISELDA was signing her credit card slip at the payment
and verification counter when she felt a sudden gust of wind and heard a loud thud. She
looked behind her. She then beheld her daughter ZHIENETH on the floor, her young body
pinned by the bulk of the store's gift-wrapping counter/structure. ZHIENETH was crying and
screaming for help. Although shocked, CRISELDA was quick to ask the assistance of the
people around in lifting the counter and retrieving ZHIENETH from the floor. 3
ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The
next day ZHIENETH lost her speech and thereafter communicated with CRISELDA by writing
on a magic slate. The injuries she sustained took their toil on her young body. She died
fourteen (14) days after the accident or on 22 May 1983, on the hospital bed. She was six
years old. 4
The cause of her death was attributed to the injuries she sustained. The provisional medical
certificate 5 issued by ZHIENETH's attending doctor described the extent of her injuries:
Diagnoses:

1. Shock, severe, sec. to intra-abdominal injuries

due to blunt injury
2. Hemorrhage, massive, intraperitoneal sec. to
laceration, (L) lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private respondents demanded upon petitioners the
reimbursement of the hospitalization, medical bills and wake and funeral expenses 6 which
they had incurred. Petitioners refused to pay. Consequently, private respondents filed a
complaint for damages, docketed as Civil Case No. 7119 wherein they sought the payment
of P157,522.86 for actual damages, P300,000 for moral damages, P20,000 for attorney's
fees and an unspecified amount for loss of income and exemplary damages.
In their answer with counterclaim, petitioners denied any liability for the injuries and
consequent death of ZHIENETH. They claimed that CRISELDA was negligent in exercising
care and diligence over her daughter by allowing her to freely roam around in a store filled
with glassware and appliances. ZHIENETH too, was guilty of contributory negligence since
she climbed the counter, triggering its eventual collapse on her. Petitioners also emphasized
that the counter was made of sturdy wood with a strong support; it never fell nor collapsed
for the past fifteen years since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it observed the diligence
of a good father of a family in the selection, supervision and control of its employees. The
other petitioners likewise raised due care and diligence in the performance of their duties
and countered that the complaint was malicious for which they suffered besmirched
reputation and mental anguish. They sought the dismissal of the complaint and an award of
moral and exemplary damages and attorney's fees in their favor.
In its decision 7 the trial court dismissed the complaint and counterclaim after finding that
the preponderance of the evidence favored petitioners. It ruled that the proximate cause of
the fall of the counter on ZHIENETH was her act of clinging to it. It believed petitioners'
witnesses who testified that ZHIENETH clung to the counter, afterwhich the structure and
the girl fell with the structure falling on top of her, pinning her stomach. In contrast, none of
private respondents' witnesses testified on how the counter fell. The trial court also held that
CRISELDA's negligence contributed to ZHIENETH's accident.
In absolving petitioners from any liability, the trial court reasoned that the counter was
situated at the end or corner of the 2nd floor as a precautionary measure hence, it could not

be considered as an attractive nuisance. 8The counter was higher than ZHIENETH. It has
been in existence for fifteen years. Its structure was safe and well-balanced. ZHIENETH,
therefore, had no business climbing on and clinging to it.
Private respondents appealed the decision, attributing as errors of the trial court its findings
that: (1) the proximate cause of the fall of the counter was ZHIENETH's misbehavior; (2)
CRISELDA was negligent in her care of ZHIENETH; (3) petitioners were not negligent in the
maintenance of the counter; and (4) petitioners were not liable for the death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be entitled to the conclusive
presumption that a child below nine (9) years is incapable of contributory negligence. And
even if ZHIENETH, at six (6) years old, was already capable of contributory negligence, still it
was physically impossible for her to have propped herself on the counter. She had a small
frame (four feet high and seventy pounds) and the counter was much higher and heavier
than she was. Also, the testimony of one of the store's former employees, Gerardo Gonzales,
who accompanied ZHIENETH when she was brought to the emergency room of the Makati
Medical Center belied petitioners' theory that ZHIENETH climbed the counter. Gonzales
claimed that when ZHIENETH was asked by the doctor what she did, ZHIENETH replied,
"[N]othing, I did not come near the counter and the counter just fell on me." 9 Accordingly,
Gonzales' testimony on ZHIENETH's spontaneous declaration should not only be considered
as part ofres gestae but also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her to
have let go of ZHIENETH at the precise moment that she was signing the credit card slip.
Finally, private respondents vigorously maintained that the proximate cause of ZHIENETH's
death, was petitioners' negligence in failing to institute measures to have the counter
permanently nailed.
On the other hand, petitioners argued that private respondents raised purely factual issues
which could no longer be disturbed. They explained that ZHIENETH's death while
unfortunate and tragic, was an accident for which neither CRISELDA nor even ZHIENETH
could entirely be held faultless and blameless. Further, petitioners adverted to the trial
court's rejection of Gonzales' testimony as unworthy of credence.
As to private respondent's claim that the counter should have been nailed to the ground,
petitioners justified that it was not necessary. The counter had been in existence for several
years without any prior accident and was deliberately placed at a corner to avoid such
accidents. Truth to tell, they acted without fault or negligence for they had exercised due
diligence on the matter. In fact, the criminal case 10 for homicide through simple negligence
filed by private respondents against the individual petitioners was dismissed; a verdict of
acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor of private respondents and reversed the
appealed judgment. It found that petitioners were negligent in maintaining a structurally
dangerous counter. The counter was shaped like an inverted "L" 11 with a top wider than the
base. It was top heavy and the weight of the upper portion was neither evenly distributed
nor supported by its narrow base. Thus, the counter was defective, unstable and dangerous;

a downward pressure on the overhanging portion or a push from the front could cause the
counter to fall. Two former employees of petitioners had already previously brought to the
attention of the management the danger the counter could cause. But the latter ignored
their concern. The Court of Appeals faulted the petitioners for this omission, and concluded
that the incident that befell ZHIENETH could have been avoided had petitioners repaired the
defective counter. It was inconsequential that the counter had been in use for some time
without a prior incident.
The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at the
time of the incident, was absolutely incapable of negligence or other tort. It reasoned that
since a child under nine (9) years could not be held liable even for an intentional wrong,
then the six-year old ZHIENETH could not be made to account for a mere mischief or
reckless act. It also absolved CRISELDA of any negligence, finding nothing wrong or out of
the ordinary in momentarily allowing ZHIENETH to walk while she signed the document at
the nearby counter.
The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It found
them biased and prejudiced. It instead gave credit to the testimony of disinterested witness
Gonzales. The Court of Appeals then awarded P99,420.86 as actual damages, the amount
representing the hospitalization expenses incurred by private respondents as evidenced by
the hospital's statement of account. 12 It denied an award for funeral expenses for lack of
proof to substantiate the same. Instead, a compensatory damage of P50,000 was awarded
for the death of ZHIENETH.
We quote the dispositive portion of the assailed decision,

13

thus:

WHEREFORE, premises considered, the judgment of the lower court is SET

ASIDE and another one is entered against [petitioners], ordering them to pay
jointly and severally unto [private respondents] the following:
1. P50,000.00 by way of compensatory damages
for the death of Zhieneth Aguilar, with legal
interest (6% p.a.) from 27 April 1984;
2.
P99,420.86
as
reimbursement
hospitalization expenses incurred; with
interest (6% p.a.) from 27 April 1984;
3. P100,000.00
damages;

as

moral

and

for
legal

exemplary

4. P20,000.00 in the concept of attorney's fees;

and
5. Costs.
Private respondents sought a reconsideration of the decision but the same was denied in the
Court of Appeals' resolution 14 of 16 July 1997.

Petitioners now seek the reversal of the Court of Appeals' decision and the reinstatement of
the judgment of the trial court. Petitioners primarily argue that the Court of Appeals erred in
disregarding the factual findings and conclusions of the trial court. They stress that since the
action was based on tort, any finding of negligence on the part of the private respondents
would necessarily negate their claim for damages, where said negligence was the proximate
cause of the injury sustained. The injury in the instant case was the death of ZHIENETH. The
proximate cause was ZHIENETH's act of clinging to the counter. This act in turn caused the
counter to fall on her. This and CRISELDA's contributory negligence, through her failure to
provide the proper care and attention to her child while inside the store, nullified private
respondents' claim for damages. It is also for these reasons that parents are made
accountable for the damage or injury inflicted on others by their minor children. Under these
circumstances, petitioners could not be held responsible for the accident that befell
ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already separated from Syvel's at
the time he testified; hence, his testimony might have been tarnished by ill-feelings against
them.
For their part, private respondents principally reiterated their arguments that neither
ZHIENETH nor CRISELDA was negligent at any time while inside the store; the findings and
conclusions of the Court of Appeals are substantiated by the evidence on record; the
testimony of Gonzales, who heard ZHIENETH comment on the incident while she was in the
hospital's emergency room should receive credence; and finally, ZHIENETH's part of the res
gestae declaration "that she did nothing to cause the heavy structure to fall on her" should
be considered as the correct version of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental or
attributable to negligence; and (2) in case of a finding of negligence, whether the same was
attributable to private respondents for maintaining a defective counter or to CRISELDA and
ZHIENETH for failing to exercise due and reasonable care while inside the store premises.
An accident pertains to an unforeseen event in which no fault or negligence attaches to the
defendant. 15 It is "a fortuitous circumstance, event or happening; an event happening
without any human agency, or if happening wholly or partly through human agency, an
event which under the circumstances is unusual or unexpected by the person to whom it
happens." 16
On the other hand, negligence is the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct of human affairs,
would do, or the doing of something which a prudent and reasonable man would not
do. 17 Negligence is "the failure to observe, for the protection of the interest of another
person, that degree of care, precaution and vigilance which the circumstances justly
demand, whereby such other person suffers injury." 18
Accident and negligence are intrinsically contradictory; one cannot exist with the other.
Accident occurs when the person concerned is exercising ordinary care, which is not caused

by fault of any person and which could not have been prevented by any means suggested
by common prudence. 19
The test in determining the existence of negligence is enunciated in the landmark case
of Plicart v. Smith, 20 thus: Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent person would have used in the
same situation? If not, then he is guilty of negligence. 21
We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETH's death
could only be attributed to negligence.
We quote the testimony of Gerardo Gonzales who was at the scene of the incident and
accompanied CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or notice
anything while the child was being treated?
A At the emergency room we were all surrounding the child.
And when the doctor asked the child "what did you do," the
child said "nothing, I did not come near the counter and the
counter just fell on me."
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate "wala po, hindi po ako lumapit doon. Basta
bumagsak." 22
This testimony of Gonzales pertaining to ZHIENETH's statement formed (and should be
admitted as) part of theres gestae under Section 42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling occurrence
is taking place or immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of the res gestae. So,
also, statements accompanying an equivocal act material to the issue, and
giving it a legal significance, may be received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering and statements made
to a physician are generally considered declarations and admissions. 23 All that is required
for their admissibility as part of the res gestaeis that they be made or uttered under the

influence of a startling event before the declarant had the time to think and concoct a
falsehood as witnessed by the person who testified in court. Under the circumstances thus
described, it is unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to
have lied to a doctor whom she trusted with her life. We therefore accord credence to
Gonzales' testimony on the matter, i.e., ZHIENETH performed no act that facilitated her
tragic death. Sadly, petitioners did, through their negligence or omission to secure or make
stable the counter's base.
Gonzales' earlier testimony on petitioners' insistence to keep and maintain the structurally
unstable gift-wrapping counter proved their negligence, thus:
Q When you assumed the position as gift wrapper at the second
floor, will you please describe the gift wrapping counter, were
you able to examine?
A Because every morning before I start working I used to clean
that counter and since not nailed and it was only standing on
the floor, it was shaky.
xxx xxx xxx
Q Will you please describe the counter at 5:00 o'clock [sic] in
the afternoon on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing
beside the verification counter. And since the top of it was
heavy and considering that it was not nailed, it can collapse at
anytime, since the top is heavy.
xxx xxx xxx
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic] shaky
and since Mr. Maat is fond of putting display decorations on
tables, he even told me that I would put some decorations. But
since I told him that it not [sic] nailed and it is shaky he told me
"better inform also the company about it." And since the
company did not do anything about the counter, so I also did
not do anything about the counter. 24 [Emphasis supplied]
Ramon Guevarra, another former employee, corroborated the testimony of Gonzales, thus:
Q Will you please described [sic] to the honorable Court the
counter where you were assigned in January 1983?
xxx xxx xxx

A That counter assigned to me was when my supervisor ordered

me to carry that counter to another place. I told him that the
counter needs nailing and it has to be nailed because it might
cause injury or accident to another since it was shaky.
Q When that gift wrapping counter was transferred at the
second floor on February 12, 1983, will you please describe that
to the honorable Court?
A I told her that the counter wrapper [sic] is really in good [sic]
condition; it was shaky. I told her that we had to nail it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told her
that the counter was shaky?
A She told me "Why do you have to teach me. You are only my
subordinate and you are to teach me?" And she even got angry
at me when I told her that.
xxx xxx xxx
Q From February 12, 1983 up to May 9, 1983, what if any, did
Ms. Panelo or any employee of the management do to that (sic)
xxx xxx xxx
Witness:
None, sir. They never nailed the counter. They only nailed the
counter after the accident happened. 25 [Emphasis supplied]
Without doubt, petitioner Panelo and another store supervisor were personally informed of
the danger posed by the unstable counter. Yet, neither initiated any concrete action to
remedy the situation nor ensure the safety of the store's employees and patrons as a
reasonable and ordinary prudent man would have done. Thus, as confronted by the situation
petitioners miserably failed to discharge the due diligence required of a good father of a
family.
On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish that
the former's testimonies were biased and tainted with partiality. Therefore, the allegation
that Gonzales and Guevarra's testimonies were blemished by "ill feelings" against
petitioners since they (Gonzales and Guevarra) were already separated from the company
at the time their testimonies were offered in court was but mere speculation and
deserved scant consideration.

It is settled that when the issue concerns the credibility of witnesses, the appellate courts
will not as a general rule disturb the findings of the trial court, which is in a better position to
determine the same. The trial court has the distinct advantage of actually hearing the
testimony of and observing the deportment of the witnesses. 26However, the rule admits of
exceptions such as when its evaluation was reached arbitrarily or it overlooked or failed to
appreciate some facts or circumstances of weight and substance which could affect the
result of the case. 27 In the instant case, petitioners failed to bring their claim within the
exception.
Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that
favors children below nine (9) years old in that they are incapable of contributory
negligence. In his book, 28 former Judge Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of age is conclusively presumed
to have acted without discernment, and is, on that account, exempt from
criminal liability. The same presumption and a like exemption from criminal
liability obtains in a case of a person over nine and under fifteen years of age,
unless it is shown that he has acted with discernment. Since negligence may
be a felony and aquasi-delict and required discernment as a condition of
liability, either criminal or civil, a child under nine years of age is, by analogy,
conclusively presumed to be incapable of negligence; and that the
presumption of lack of discernment or incapacity for negligence in the case of
a child over nine but under fifteen years of age is a rebuttable one, under our
law. The rule, therefore, is that a child under nine years of age must be
conclusively presumed incapable of contributory negligence as a matter of
law. [Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and assume that she climbed over
the counter, no injury should have occurred if we accept petitioners' theory that the counter
was stable and sturdy. For if that was the truth, a frail six-year old could not have caused the
counter to collapse. The physical analysis of the counter by both the trial court and Court of
Appeals and a scrutiny of the evidence 29 on record reveal otherwise, i.e., it was not durable
after all. Shaped like an inverted "L," the counter was heavy, huge, and its top laden with
formica. It protruded towards the customer waiting area and its base was not secured. 30
CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH held
on to CRISELDA's waist, later to the latter's hand. 31 CRISELDA momentarily released the
child's hand from her clutch when she signed her credit card slip. At this precise moment, it
was reasonable and usual for CRISELDA to let go of her child. Further, at the time ZHIENETH
was pinned down by the counter, she was just a foot away from her mother; and the giftwrapping counter was just four meters away from CRISELDA. 32 The time and distance were
both significant. ZHIENETH was near her mother and did not loiter as petitioners would want
to impress upon us. She even admitted to the doctor who treated her at the hospital that
she did not do anything; the counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the challenged
decision of the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is hereby
AFFIRMED.

Costs against petitioners.

SO ORDERED.
Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur.

G.R. No. L-7644

March 24, 1913

SYDNEY
vs.
LOPE K. SANTOS, defendant-appellant.

COOMBS, plaintiff-appellee,

W.A. Kincaid, Thomas L. Hartigan

O'Brien and DeWitt, for appellee.

and

Jose

Robles

Lahesa,

for

appellant.

TRENT, J.:
The property in question was seized on March 31, 1911, by the defendant Lope K. Santos as
sheriff of the Province of Rizal, acting by virtue of an execution issued at the instance of
Kuenzle & Streiff in a case wherein the latter was the plaintiff and George Cruickshank was
the defendant. The plaintiff, who was in possession of the property at the time of the
seizure, demanded its return from the sheriff. Upon the sheriff's refusal to comply with this
demand the plaintiff instituted this action in the Court of First Instance of the city of Manila
to recover possession of the property seized and for damages caused by reason of the
seizure. The first complaint was against Lope K. Santos alone and a summons was served
upon him on the 10th day of April. The amended complaint added the firm of Kuenzle &
Streiff as defendant. This amended complaint was served upon the manager of the
defendant Kuenzle & Streiff on the 24th day of April, and upon the defendant Santos on the
25th day of April. Both defendants entered their appearance through their attorneys, on the
4th day of May, and not having answered within the time provided, Lope K. Santos was, by a
judgment of the court, declared to be in default on the 23rd of May, and the case was heard
on the 25th of May, at which time the defendant Kuenzle & Streiff was declared to be in
default. After stating the facts as found, the trial court said:
Let judgment be entered in favor of the plaintiff, Sydney Coombs, and against the
defendants Lope K. Santos, sheriff of the Province of Rizal, and Kuenzle & Streiff, for
the delivery and possession of the following described property: A temporary building
of mixed materials; 1 piano; 49 bamboo chairs; 26 bar tables; 100 rattan chairs; 1
piano stool; 1 refrigerator; 1 front bar; 1 back bar; 1 cork extractor; 1 set of mirrors;
one 50 c.p. electric light globe; seven 16 c.p. electric light globes; six 100 c.p. electric
light globes; two 400 c.p. electric light globes; five 50 c.p. electric light globes; one
32 c.p. electric light globe; and for damages for the detention thereof in the sum of
P200 per month during the time it was detained, and for the costs of the cause.
From this judgment Lope K. Santos alone appealed and now insists that the trial court erred
(1) in overruling his motion asking for the annulment of the order wherein he was declared
to be in default; and (2) in taking jurisdiction of the cause, the same being for the recovery
of real property. No other questions have been raised by the appellant.
With reference to the first alleged error, it appears, as before stated, that the amended
complaint was served upon the appellant on the 25th day of April, 1911, and that he entered
his appearance on the 4th of May. On the 23rd day of May, the appellant not having
answered or demurred, a default judgment was entered against him. Subsequently thereto,
and on the following day, he filed a motion, which was sworn to, asking that the judgment by
default be set aside. This motion was denied and exception noted. The reasons given by
counsel for the appellant in the motion to set aside the default judgment were as follows:
It is the docket clerk of the office who has in his care the papers in cases pending,
and whose duty it is to notify counsel of the dates when the time expires for
answering or presenting any other pleadings to the courts. Said docket clerk has

been absent from this office since May 6 without notifying anyone and without
leaving any memorandum of hearing or motions pending, and returned only
yesterday. Counsel who are now in this office received no notification of the time
having elapsed for presenting an answer or demurrer until they were served by the
court with notice of the order of default against said defendant, Lope K. Santos.
Counsel for the appellee insist that the first alleged error is not well-founded because (1) the
motion does not show that the default occurred through mistake, inadvertence, surprise, or
excusable neglect; (2) it was not known that the trial court abused its discretion in refusing
to set aside the default judgment; and (3) the application to open the default does not
contain nor was accompanied by an affidavit showing a meritorious defense. The first and
second propositions will be considered together.
Section 113 of the Code of Civil Procedure reads:
Upon such terms as may be just the court may relieve a party or his legal
representative from a judgment, order, or other proceeding taken against him
through his mistake, inadvertence, surprise or excusable neglect: Provided, That
application therefor be made within a reasonable time, but in no case exceeding six
months after such judgment, order, or proceeding was taken.
The default was entered nineteen days after the appellant had entered his appearance.
Motion to open default was made before the trial of the case on the merits. No one contends
that if the default had been set aside it would have delayed the trial of the cause or
inconvenienced the appellee in any manner. Counsel who entered their appearance for the
appellant now swear that they have in their office an employee called the docket clerk, who
has in his possession the papers in pending cases, and whose duty it is to notify counsel of
the days within which pleadings must be filed. This docket clerk absented himself on May 6,
two days after appearance was entered, and did not return until the 23rd, the very day that
the default was taken. The clerk did not notify counsel of the expiration of the time within
which they should file their answer. Do these facts bring them within the provisions of
section 113, supra?
A default judgment does not pretend to be based upon the merits of the controversy. Its
existence is justified on the ground that it is the one final expedient to induce the defendant
to join issue upon the allegations tendered by the plaintiff, and to do so without unnecessary
delay. A judgment of default may amount to a positive and considerable injustice to the
defendant; and the possibility of such serious consequences necessitates a careful
examination of the grounds upon which the defendant asks that it be set aside.
In Watson vs. R. R. Co. (41 Cal., 17, 20), the court said:
Applications of this character are addressed to the discretion the legal discretion
of the court in which the default has occurred, and should be disposed of by it as
substantial justice may seem to require. Each case must be determined upon its own
peculiar facts, for perhaps no two cases will be found to present the same
circumstances for reconsideration. As a general rule, however, in cases where, as
here, the application is made so immediately after default entered as that no

considerable delay to the plaintiff is to be occasioned by permitting a defense on the

merits, the court ought to incline to relieve. The exercise of the mere discretion of the
court ought to tend in a reasonable degree, at least, to bring about a judgment on
the very merits of the case; and when the circumstances are such as to lead the
court to hesitate upon the motion to open the default, it is better, as a general rule,
that the doubt should be resolved in favor of the application.
It might be added that if plaintiff relies upon his judgment obtained by default and directs
the attention of the court to no real injury which would result to his interest by the reopening
of the case, his objection to such action assumes, to say the least, the appearance of a
technicality, which, in this liberal age, is not looked upon with favor. An examination of the
authorities shows that where application to set aside a default judgment is made
immediately following its entry, it will receive much greater consideration than where a
delay of months or even weeks has occurred.
But it is urged that the granting of the motion to set aside a default rests in the discretion of
the court; that such discretion cannot be controlled in the absence of a showing of an abuse
thereof; and that this showing has not been made in the case at bar.
It must be remembered that the only discretion conferred upon officers is a legal discretion,
and when anything is left to any officer to be done according to his discretion the law
intends it to be done with a sound discretion and according to law; and if a given case falls
within both the letter and spirit of section 113, supra, a denial of the relief sought will
amount to an abuse of such discretion.
"Inadvertence" is defined to be, among other things, an oversight; an involuntary accident;
the effect of inattention. And "mistake" is define to be an error in action; a blunder. The
conduct of counsel in the case at bar in depending upon their docket clerk to call their
attention rises no higher than the plane of inadvertence. They have brought this case, in so
far as the two propositions under consideration are concerned, within both the letter and the
spirit of the remedy.
There is, however, a serious drawback to granting the relief asked. The motion asking that
the default judgment be set aside is accompanied by no affidavit of merits. Although the
Code does not specifically require such an affidavit of merits, the reasonableness and
necessity for it is apparent. If the defendant has no real defense to the action or intends to
enter only a technical plea, there would be no justice in permitting the case to be reopened
and subject plaintiff to further delay and expense for the mere purpose of rendering a
judgment in the regular manner. It is but right, therefore, to require the defendant to show
that if he be allowed to answer he will be able to produce evidence which may effect the
claims of the plaintiff.
The universality of the rule is attested by the remarks in 23 Cyc., 951, 955, and 962,
supported by a host of authorities. Black on judgments, 347, thus states the general rule:
Where an application is made to open a judgment, under the statutes for the
purpose, it must be accompanied by an affidavit setting a good defense on the
merits, and showing that the default occurred through mistake, surprise, or other

statutory ground, and stating the facts constituting such mistake, surprise, etc., and
also showing due diligence. And independently of such statutes, it has always been
the practice of our courts, from the very earliest times, on an application to open or
set aside a judgment, to require some sort of showing, by affidavit or otherwise, that
the judgement is unjust as it stands and prejudicial to the party complaining and that
he has a meritorious defense. It may therefore be regarded as a universal
requirement.
A mere statement that defendant has a valid defense is a conclusion of law
(Roberts vs. Corby, 86 Ill., 182); or is not sufficient (Palmer vs. Rogers, 70 Ia., 381, 30 N.W.
645; Jackson vs. Stiles, 3 Caines (N.Y.), 93; Mayer vs.Mayer, 27 Ore., 133, 39 Pac., 1002;
Forster vs. Martin, 20 Tex., 119). The only exceptions to the rule are cases where the
granting of the motion is not discretionary but is demandable as of right, as where there was
no jurisdiction over the defendant or of the subject matter of the action, where a judgment
was taken by default before defendant's time to answer had expired, where it was entered
by mistake, or was obtained by fraud, and other similar cases. (23 Cyc., 956.) It does not
appear that any such exceptions favor the present case.
The opinion of this court in the case of Wahl vs. Donaldson, Sims & Co. (2 Phil., Rep., 301),
sets forth the rule with some particularity. But in view of the fact that the opinion in its
entirety was not approved by a majority of the court, we have taken this opportunity to state
the rule at length, and compliance with it in the future will be required.
The rule being now clearly set forth, and it having been decided to consider conditionally the
motion of counsel to set aside the judgment by default, it is ordered that the record be
returned to the court whence it came with instructions to allow the appellant to file an
affidavit of merits. When this is done the court will proceed to determine whether the
judgment by default should be set aside, and after this determination, the case will go
forward to final conclusion. No costs will be allowed either party in this instance.
Arellano, C.J., Torres, Johnson, and Moreland, JJ., concur.

G.R. No. L-35283

November 5, 1932

JULIAN
DEL
vs.
MANILA ELECTRIC COMPANY, defendant-appellee.

ROSARIO, plaintiff-appellant,

Vicente
Sotto
for
Ross, Lawrence & Selph and Antonio T. Carrascoso, Jr. for appellee.

STREET, J.:

appellant.

This action was instituted by Julian del Rosario for the purpose of recovering damages from
the Manila Electric Company for the death of his son, Alberto del Rosario, resulting from a
shock from a wire used by the defendant for the transmission of electricity. The accident
occurred on Dimas-Alang Street, in the municipality of Caloocan, Province of Rizal. Damages
are claimed in the complaint in the amount of P30,000. Upon hearing the cause the trial
court absolved the defendant, and the plaintiff appealed.
Shortly after 2 o'clock on the afternoon of August 4, 1930, trouble developed in a wire used
by the defendant on Dimas-Alang Street for the purpose of conducting electricity used in
lighting the City of Manila and its suburbs. Jose Noguera, who had charge of a tienda nearby,
first noticed that the wire was burning and its connections smoking. In a short while the wire
parted and one of the ends of the wire fell to the ground among some shrubbery close to the
way. As soon as Noguera took cognizance of the trouble, he stepped into a garage which was
located nearby and asked Jose Soco, the timekeeper, to telephone the Malabon station of
the Manila Electric Company that an electrical wire was burning at that place. Soco
transmitted the message at 2.25 p.m. and received answer from the station to the effect
that they would send an inspector. From the testimony of the two witnesses mentioned we
are justified in the conclusion that information to the effect that the electric wire at the point
mentioned had developed trouble was received by the company's servant at the time
stated. At the time that message was sent the wire had not yet parted, but from the
testimony of Demetrio Bingao, one of the witnesses for the defense, it is clear that the end
of the wire was on the ground shortly after 3 p.m.
At 4 p. m. the neighborhood school was dismissed and the children went home. Among
these was Alberto del Rosario, of the age of 9 years, who was a few paces ahead of two
other boys, all members of the second grade in the public school. These other two boys were
Jose Salvador, of the age of 8, and Saturnino Endrina, of the age of 10. As the three neared
the place where the wire was down, Saturnino made a motion as if it touch it. His
companion, Jose Salvador, happened to be the son of an electrician and his father had
cautioned him never to touch a broken electrical wire, as it might have a current. Jose
therefore stopped Saturnino, telling him that the wire might be charged. Saturnino yielded to
this admonition and desisted from his design, but Alberto del Rosario, who was somewhat
ahead, said, I have for some time been in the habit of touching wires ("Yo desde hace tiempo
cojo alambres"). Jose Salvador rejoined that he should into touch wires as they carry a
current, but Alberto, no doubt feeling that he was challenged in the matter, put out his index
finger and touch the wire. He immediately fell face downwards, exclaiming "Ay! madre". The
end of the wire remained in contact with his body which fell near the post. A crowd soon
collected, and some one cut the wire and disengaged the body. Upon being taken to St.
Luke's Hospital the child was pronounced dead.
The wire was an ordinary number 6 triple braid weather proof wire, such as is commonly
used by the defendant company for the purpose of conducting electricity for lighting. The
wire was cased in the usual covering, but this had been burned off for some distance from
the point where the wire parted. The engineer of the company says that it was customary for
the company to make a special inspection of these wires at least once in six months, and
that all of the company's inspectors were required in their daily rounds to keep a lookout for
trouble of this kind. There is nothing in the record indicating any particular cause for the
parting of the wire.lawphil.net

We are of the opinion that the presumption of negligence on the part of the company from
the breakage of this wire has not been overcome, and the defendant is in our opinion
responsible for the accident. Furthermore, when notice was received at the Malabon station
at 2.25 p. m., somebody should have been dispatched to the scene of the trouble at once, or
other measures taken to guard the point of danger; but more than an hour and a half passed
before anyone representing the company appeared on the scene, and in the meantime this
child had been claimed as a victim.
It is doubtful whether contributory negligence can properly be imputed to the deceased,
owing to his immature years and the natural curiosity which a child would feel to do
something out of the ordinary, and the mere fact that the deceased ignored the caution of a
companion of the age of 8 years does not, in our opinion, alter the case. But even supposing
that contributory negligence could in some measure be properly imputed to the deceased,
a proposition upon which the members of the court do not all agree, yet such
negligence would not be wholly fatal to the right of action in this case, not having been the
determining cause of the accident. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil., 359.)
With respect to the amount of damages recoverable the majority of the members of this
court are of the opinion that the plaintiff is entitled to recover P250 for expenses incurred in
connection with the death and burial of the boy. For the rest, in accordance with the
precedents cited in Astudillo vs. Manila Electric Company (55 Phil., 427), the majority of the
court are of the opinion that the plaintiff should recover the sum of P1,000 as general
damages for loss of service.
The judgment appealed from is therefore reversed and the plaintiff will recover of the
defendant the sum of P1,250, with costs of both instances. So ordered.
Avancea, C.J., Malcolm, Ostrand, Villa-Real, Vickers, Imperial and Butte, JJ., concur.
Separate Opinions
ABAD SANTOS, J., concurring in part and dissenting in part:
I concur in so far as the defendant company is held liable for the death of the plaintiff's son,
but I dissent in so far as the decision allows the plaintiff to recover of the defendant the sum
of P1,250 only.
It is well settled in this jurisdiction that an action will lie to recover damages for death
caused by the wrongful act. (Manzanares vs. Moreta, 38 Phil., 821.) The question, however,
arises as to the amount of damages recoverable in this case. In criminal cases, this court has
adopted the rule of allowing, as a matter of course, the sum of P1,000 as indemnity to the
heirs of the deceased. Following that rule, the court has allowed the plaintiff in this case to
recover the sum of P1,000 as general damages for loss of service. Whatever may be the
reasons for the rule followed in criminal cases, I am of the opinion that those reasons do not
obtain in fixing the amount of the damages recoverable in the present case. The indemnity
allowed in criminal case is merely incidental to the main object sought, which is the
punishment of the guilty party. In a civil action, the principal object is the recovery of
damages for wrongful death; and where, as in this case, the defendant is a corporation, not

subject to criminal prosecution for the act complained of, the question assumes a vastly
different aspect. Both in reason and in justice, there should be a distinction between the civil
liability of an ordinary person who, by wrongful act, has caused the death of another; and
the civil liability of a corporation, organized primarily for profit, which has caused the death
of a person by failure to exercise due care in the prosecution of its business. The liability of
such a corporation for damages must be regarded as a part of the risks which it assumes
when it undertakes to promote its own business; and just as it is entitled to earn adequate
profits from its business, so it should be made adequately to compensate those who have
suffered damage by its negligence.
Considering the circumstances of this case, I am of the opinion that the plaintiff should
recover the sum of P2,250 as damages.
G.R. No. L-33722 July 29, 1988
FEDERICO
YLARDE
and
ADELAIDA
DORONIO petitioners,
vs.
EDGARDO AQUINO, MAURO SORIANO and COURT OF APPEALS, respondents.
Buenaventura C. Evangelista for petitioners.
Modesto V. Cabanela for respondent Edgardo Aquino.
Manuel P. Pastor for respondent Mauro Soriano.

GANCAYCO, J.:
In this petition for review on certiorari seeking the reversal of the decision of the Court of
Appeals in CA-G.R. No. 36390-R entitled "Federico Ylarde, et al. vs. Edgardo Aquino, et al.," a
case which originated from the Court of First Instance of Pangasinan, We are again caned
upon determine the responsibility of the principals and teachers towards their students or
pupils.
In 1963, private respondent Mariano Soriano was the principal of the Gabaldon Primary
School, a public educational institution located in Tayug, Pangasinan-Private respondent
Edgardo Aquino was a teacher therein. At that time, the school was fittered with several
concrete blocks which were remnants of the old school shop that was destroyed in World
War II. Realizing that the huge stones were serious hazards to the schoolchildren, another
teacher by the name of Sergio Banez started burying them one by one as early as 1962. In
fact, he was able to bury ten of these blocks all by himself.
Deciding to help his colleague, private respondent Edgardo Aquino gathered eighteen of his
male pupils, aged ten to eleven, after class dismissal on October 7, 1963. Being their
teacher-in-charge, he ordered them to dig beside a one-ton concrete block in order to make
a hole wherein the stone can be buried. The work was left unfinished. The following day, also
after classes, private respondent Aquino called four of the original eighteen pupils to

continue the digging. These four pupils Reynaldo Alonso, Francisco Alcantara, Ismael
Abaga and Novelito Ylarde, dug until the excavation was one meter and forty centimeters
deep. At this point, private respondent Aquino alone continued digging while the pupils
remained inside the pit throwing out the loose soil that was brought about by the digging.
When the depth was right enough to accommodate the concrete block, private respondent
Aquino and his four pupils got out of the hole. Then, said private respondent left the children
to level the loose soil around the open hole while he went to see Banez who was about thirty
meters away. Private respondent wanted to borrow from Banez the key to the school
workroom where he could get some rope. Before leaving. , private respondent Aquino
allegedly told the children "not to touch the stone."
A few minutes after private respondent Aquino left, three of the four kids, Alonso, Alcantara
and Ylarde, playfully jumped into the pit. Then, without any warning at all, the remaining
Abaga jumped on top of the concrete block causing it to slide down towards the opening.
Alonso and Alcantara were able to scramble out of the excavation on time but unfortunately
fo Ylarde, the concrete block caught him before he could get out, pinning him to the wall in a
standing position. As a result thereof, Ylarde sustained the following injuries:
1. Contusion with hematoma, left inguinal region and suprapubic region.
2. Contusion with ecchymosis entire scrotal region.
3. Lacerated wound, left lateral aspect of penile skin with phimosis
4. Abrasion, gluteal region, bilateral.
5. Intraperitoneal and extrapertitoneal extravasation of blood and urine about
2 liters.
6. Fracture, simple, symphesis pubis
7. Ruptured (macerated) urinary bladder with body of bladder almost entirely
separated from its neck.
REMARKS:
1. Above were incurred by crushing injury.
2. Prognosis very poor.
(Sgd.) MELQUIADES
A. BRAVO
Physici
an on
Duty. 1

Three days later, Novelito Ylarde died.

Ylarde's parents, petitioners in this case, filed a suit for damages against both private
respondents Aquino and Soriano. The lower court dismissed the complaint on the following
grounds: (1) that the digging done by the pupils is in line with their course called Work
Education; (2) that Aquino exercised the utmost diligence of a very cautious person; and (3)
that the demise of Ylarde was due to his own reckless imprudence. 2
On appeal, the Court of Appeals affirmed the Decision of the lower court.
Petitioners base their action against private respondent Aquino on Article 2176 of the Civil
Code for his alleged negligence that caused their son's death while the complaint against
respondent Soriano as the head of school is founded on Article 2180 of the same Code.
Article 2176 of the Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre- existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this
Chapter.
On the other hand, the applicable provision of Article 2180 states:
Art. 2180. x x x
xxx xxx xxx
Lastly, teachers or heads of establishments of arts and trades shall be liable
for damages caused by their pupils and students or apprentices, so long as
they remain in their custody. 3
The issue to be resolved is whether or not under the cited provisions, both private
respondents can be held liable for damages.
As regards the principal, We hold that he cannot be made responsible for the death of the
child Ylarde, he being the head of an academic school and not a school of arts and trades.
This is in line with Our ruling in Amadora vs. Court of Appeals, 4 wherein this Court
thoroughly discussed the doctrine that under Article 2180 of the Civil Code, it is only the
teacher and not the head of an academic school who should be answerable for torts
committed by their students. This Court went on to say that in a school of arts and trades, it
is only the head of the school who can be held liable. In the same case, We explained:
After an exhaustive examination of the problem, the Court has come to the
conclusion that the provision in question should apply to all schools, academic
as well as non-academic. Where the school is academic rather than technical
or vocational in nature, responsibility for the tort committed by the student
will attach to the teacher in charge of such student, following the first part of

the provision. This is the general rule. In the case of establishments of arts
and trades, it is the head thereof, and only he, who shall be held liable as an
exception to the general rule. In other words, teachers in general shall be
liable for the acts of their students except where the school is technical in
nature, in which case it is the head thereof who shall be answerable. Following
the canon ofreddendo singula sinquilis 'teachers' should apply to the words
"pupils and students' and 'heads of establishments of arts and trades to the
word "apprentices."
Hence, applying the said doctrine to this case, We rule that private respondent Soriano, as
principal, cannot be held liable for the reason that the school he heads is an academic
school and not a school of arts and trades. Besides, as clearly admitted by private
respondent Aquino, private respondent Soriano did not give any instruction regarding the
digging.
From the foregoing, it can be easily seen that private respondent Aquino can be held liable
under Article 2180 of the Civil Code as the teacher-in-charge of the children for being
negligent in his supervision over them and his failure to take the necessary precautions to
prevent any injury on their persons. However, as earlier pointed out, petitioners base the
alleged liability of private respondent Aquino on Article 2176 which is separate and distinct
from that provided for in Article 2180.
With this in mind, the question We need to answer is this: Were there acts and omissions on
the part of private respondent Aquino amounting to fault or negligence which have direct
causal relation to the death of his pupil Ylarde? Our answer is in the affirmative. He is liable
for damages.
From a review of the record of this case, it is very clear that private respondent Aquino acted
with fault and gross negligence when he: (1) failed to avail himself of services of adult
manual laborers and instead utilized his pupils aged ten to eleven to make an excavation
near the one-ton concrete stone which he knew to be a very hazardous task; (2) required the
children to remain inside the pit even after they had finished digging, knowing that the huge
block was lying nearby and could be easily pushed or kicked aside by any pupil who by
chance may go to the perilous area; (3) ordered them to level the soil around the excavation
when it was so apparent that the huge stone was at the brink of falling; (4) went to a place
where he would not be able to check on the children's safety; and (5) left the children close
to the excavation, an obviously attractive nuisance.
The negligent act of private respondent Aquino in leaving his pupils in such a dangerous site
has a direct causal connection to the death of the child Ylarde. Left by themselves, it was but
natural for the children to play around. Tired from the strenuous digging, they just had to
amuse themselves with whatever they found. Driven by their playful and adventurous
instincts and not knowing the risk they were facing three of them jumped into the hole while
the other one jumped on the stone. Since the stone was so heavy and the soil was loose
from the digging, it was also a natural consequence that the stone would fall into the hole
beside it, causing injury on the unfortunate child caught by its heavy weight. Everything that
occurred was the natural and probable effect of the negligent acts of private respondent
Aquino. Needless to say, the child Ylarde would not have died were it not for the unsafe

situation created by private respondent Aquino which exposed the lives of all the pupils
concerned to real danger.
We cannot agree with the finding of the lower court that the injuries which resulted in the
death of the child Ylarde were caused by his own reckless imprudence, It should be
remembered that he was only ten years old at the time of the incident, As such, he is
expected to be playful and daring. His actuations were natural to a boy his age. Going back
to the facts, it was not only him but the three of them who jumped into the hole while the
remaining boy jumped on the block. From this, it is clear that he only did what any other tenyear old child would do in the same situation.
In ruling that the child Ylarde was imprudent, it is evident that the lower court did not
consider his age and maturity. This should not be the case. The degree of care required to be
exercised must vary with the capacity of the person endangered to care for himself. A minor
should not be held to the same degree of care as an adult, but his conduct should be judged
according to the average conduct of persons of his age and experience. 5 The standard of
conduct to which a child must conform for his own protection is that degree of care
ordinarily exercised by children of the same age, capacity, discretion, knowledge and
experience under the same or similar circumstances. 6Bearing this in mind, We cannot
charge the child Ylarde with reckless imprudence.
The court is not persuaded that the digging done by the pupils can pass as part of their Work
Education. A single glance at the picture showing the excavation and the huge concrete
block 7 would reveal a dangerous site requiring the attendance of strong, mature laborers
and not ten-year old grade-four pupils. We cannot comprehend why the lower court saw it
otherwise when private respondent Aquino himself admitted that there were no instructions
from the principal requiring what the pupils were told to do. Nor was there any showing that
it was included in the lesson plan for their Work Education. Even the Court of Appeals made
mention of the fact that respondent Aquino decided all by himself to help his co-teacher
Banez bury the concrete remnants of the old school shop. 8 Furthermore, the excavation
should not be placed in the category of school gardening, planting trees, and the like as
these undertakings do not expose the children to any risk that could result in death or
physical injuries.
The contention that private respondent Aquino exercised the utmost diligence of a very
cautious person is certainly without cogent basis. A reasonably prudent person would have
foreseen that bringing children to an excavation site, and more so, leaving them there all by
themselves, may result in an accident. An ordinarily careful human being would not assume
that a simple warning "not to touch the stone" is sufficient to cast away all the serious
danger that a huge concrete block adjacent to an excavation would present to the children.
Moreover, a teacher who stands in loco parentis to his pupils would have made sure that the
children are protected from all harm in his company.
We close by categorically stating that a truly careful and cautious person would have acted
in all contrast to the way private respondent Aquino did. Were it not for his gross negligence,
the unfortunate incident would not have occurred and the child Ylarde would probably be
alive today, a grown- man of thirty-five. Due to his failure to take the necessary precautions
to avoid the hazard, Ylarde's parents suffered great anguish all these years.

WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the questioned
judgment of the respondent court is REVERSED and SET ASIDE and another judgment is
hereby rendered ordering private respondent Edagardo Aquino to pay petitioners the
following:
(1) Indemnity for the death of Child Ylarde P30,000.00
(2) Exemplary damages 10,000.00
(3) Moral damages 20,000.00
G.R. No. L-10563

March 2, 1916

THE
UNITED
vs.
ANTONIO BONIFACIO, defendant-appellant.
William
A.
Kincaid
and
Thomas
Acting Attorney-General Zaragoza for appellee.

STATES, plaintiff-appellee,

L.

Hartigan

for

appellant.

CARSON, J.:
The appellant in this case was charged in the court below with homicidio por imprudencia
temeraria (homicide committed with reckless negligence), and was convicted
of homicidio committed with simple negligence and sentenced to four months and one day
of arresto mayor and to pay the costs of the proceedings.
The information charges the commission of the offense as follows:
On or about the 31st day of October of the present year, 1913, in the barrio of Santa
Rita of the municipality of Batangas, Batangas, the accused, being an engineer and
while conducting the freight train which was going to the municipality of Bauan, at
about 10 o'clock in the morning of the said day saw that Eligio Castillo, a deaf-mute,
was traveling along the railroad track, and as the said Castillo did not get off of the
said track in spite of the whistle or warnings given by the accused, the accused did
maliciously and criminally cause the said train to run over the said Castillo, thereby
killing him instantly; an act committed with violation of law.
On the 31st of October, 1913, Eligio Castillo, a deaf-mute, was run down and killed, while
attempting to cross the railroad track in the barrio of Santa Rita, Batangas, by an engine on
which the accused was employed as engineer. The deaf-mute stepped out on the track from
an adjoining field shortly before the accident, walked along one side of the track for some
little distance and was killed as he attempted, for some unknown reason, to cross over to
the other side.
When the accused engineer first saw the deceased, he was walking near the track, in the
same direction as that in which the train was running. The train, a heavy freight train, had
just rounded a curve, and the man in front was about 175 meters ahead of the engine. The
engineer immediately blew his whistle twice, and noticing, a few moments afterwards, that
the man in front did not respond to the warning by stepping aside from the track, he tried to
slow down the engine, but did not succeed in stopping in time to avoid running down the
pedestrian. He did not attempt to stop his engine when he first saw the man walking along

the side of the track; but he claims that he did all in his power to slow down a few moments
afterwards, that is to say after he had blown his whistle without apparently attracting the
attention of the pedestrian, who, about that time, turned and attempted to cross the track.
The only evidence as to the rate of speed at which the train was running at the time of the
accident was the testimony of the accused himself, who said that his indicator showed that
he was travelling at the rate of 35 kilometers an hour, the maximum speed permitted under
the railroad regulations for freight trains on that road.
There was a heavy decline in the track from the turn at the curve to a point some distance
beyond the place where the accident took place, and the undisputed evidence discloses that
a heavy freight train running at the rate of 35 miles an hour could not be brought to a stop
on that decline in much less than one hundred and fifty meters.
We think that the meter statement of facts, as disclosed by the undisputed evidence of
record, sufficiently and conclusive demonstrates that the death of the deaf-mute was the
result of a regrettable accident, which was unavoidable so far as this accused was
concerned.
It has been suggested that, had the accused applied his brakes when he first saw the man
walking near the track, after his engine rounded the curve, he might have stopped the train
in time to have avoided the accident, as it is admitted that the distance from the curve to
the point where the accident occurred was about 175 meters.
But there is no obligation on an engine driver to stop, or even to slow down his engine, when
he sees an adult pedestrian standing or walking on or near the track, unless there is
something in the appearance or conduct of the person on foot which would cause a prudent
man to anticipate the possibility that such person could not, or would not avoid the
possibility of danger by stepping aside. Ordinarily, all that may properly be required of an
engine driver under such circumstances is that he give warning of his approach, by blowing
his whistle or ringing his bell until he is assured that the attention of the pedestrian has been
attracted to the oncoming train.
Of course it is the duty of an engine driver to adopt every measure in his power to avoid the
infliction of injury upon any person who may happen to be on the track in front of his engine,
and to slow down, or stop altogether if that be necessary, should he have reason to believe
that only by doing so can an accident be averted.
But an engine driver may fairly assume that all persons walking or standing on or near the
railroad track, except children of tender years, are aware of the danger to which they are
exposed; and that they will take reasonable precautions to avoid accident, by looking and
listening for the approach of trains, and stepping out of the way of danger when their
attention is directed to an oncoming train.
Any other rule would render it impracticable to operate railroads so as to secure the
expeditious transportation of passengers and freight which the public interest demands. If
engine drivers were required to slow down or stop their trains every time they see a
pedestrian on or near the track of the railroad it might well become impossible for them to
maintain a reasonable rate of speed. As a result the general traveling public would be
exposed to great inconvenience and delay which may be, and is readily avoided by requiring
all persons approaching a railroad track, to take reasonable precautions against danger from
trains running at high speed.

There was nothing in the appearance or conduct of the victim of the accident in the cast at
bar which would have warned the accused engine driver that the man walking along the side
of the tract was a deaf-mute, and that despite the blowing of the whistle and the noise of the
engine he was unconscious of his danger. It was not until the pedestrian attempted to cross
the track, just in front of the train, that the accused had any reason to believe that his
warning signals had not been heard, and by that time it was too late to avoid the accident.
Under all the circumstances, we are satisfied that the accused was without fault; and that
the accident must be attributed wholly to the reckless negligence of the deaf-mute, in
walking on the track without taking the necessary precautions to avoid danger from a train
approaching him from behind.
The trial judge, although he was satisfied that the accused was not guilty of reckless
negligence, held that he was guilty of homicide through simple negligence, accompanied by
a breach of speed regulations, and imposed the penalty prescribed for that offense in article
568 of the Penal Code.
The only evidence as to the speed at which the train was running at the time of the accident
was the testimony of the accused himself, who said that before the accident occurred his
indicator showed that he was running at the rate of 35 kilometers an hour, the maximum
speed authorized under the railroad regulations. From this statement of the accused, taken
together with the evidence disclosing that the train was running on a down grade at the
time when the accident occurred, the trial judge inferred that the train must have been
running at more than 35 miles an hour at that moment, that is to say at a speed in excess of
that allowed under the railroad regulations.
We are of opinion, however, that the evidence does not sustain a finding, beyond a
reasonable doubt, that the train was running at more than 35 miles an hour at the time
when the accident occurred. We think that the statement of the accused engineer that the
indicator or his engine showed that he was running at 35 miles an hour before the accident
referred to the time immediately preceding the accident. Even if it were true, as the trial
judge inferred from his evidence, that the accused looked at the indicator several seconds
before the accident, and before the train entered on the down-grade some 175 yards from
the place at which it occurred, it does not necessarily follow that the speed of travel was
increased thereafter beyond the limit prescribed by regulations. That would depend to some
extent on the steam pressure maintained on the engine, and perhaps upon other factors not
developed in the record.
Mere conjecture, and inferences unsupported by satisfactory evidence, are not sufficient to
establish a material finding of fact upon which a finding of guilt, beyond a reasonable doubt,
can be sustained.
Moreover, even if it were true that the train was running at a speed slightly in excess of the
limit prescribed by regulations, just before the accident took place, that fact would not
justify or require the imposition of the penalty prescribed in article 568 of the Criminal Code,
it affirmatively appearing that the slight excess of speed had no possible causal relation to
the accident.
Granting it to be true, as found by the trial judge, that the train had gained some small
addition in speed beyond the authorized rate of travel, as a result of the fact that it was
running on down grade for about one hundred meters before the accident occurred, it
affirmatively appears from the statement of facts set forth above, that, under all the
circumstances, the accident must have taken place whether the speed had been slightly
under rather than slightly over the limit prescribed by regulation, and that it was due wholly

to the negligent conduct of the deceased. The provisions of article 568 of the Criminal Code
under which the accused was convicted are as follows:
xxx

xxx

xxx

Any person who, while violating any regulation, shall, by any act of imprudence or
negligence not amounting to reckless imprudence, commit an offense, shall suffer
the penalty of arresto mayor in its medium and maximum degrees.
This does not mean that in every case in which one accidentally injures or kills another he is
criminally liable therefor, if at the moment he happens to be guilty of a violation of some
petty regulation (reglamento). The injury or death must have resulted from some
"imprudence or negligence" (imprudencia o negligencia) on his part. True it need only be
slight negligence, if accompanied by a violation of the regulations, but the relation of cause
and effect must exist between the negligence or imprudence of the accused and the injury
inflicted. If it appears that the injury in no wise resulted from the violation of the regulations,
or the negligent conduct of the accused, he incurs no criminal liability under the provisions
of this article.
Viada, in his commentaries on this article of the Penal Code (vol. 3, p. 685), sets out the
following question and answer which clearly discloses that a conviction thereunder cannot
be maintained, unless there was culpable negligence in the violation of a duly prescribed
regulation; and unless, further, the latter was the proximate and immediate cause of the
injury inflicted:
Question No. 17. A pharmacist left his store forgetting and leaving behind the keys
to the case where the most powerful drugs were kept. During his absence his clerk
filled a prescription which he believed was duly made out by a physician but which, in
fact, was signed by an unauthorized person. The prescription called for certain
substances which were afterwards employed to procure an abortion. These
substances, according to a medical report, were of a poisonous and extremely
powerful nature such as should be most carefully safeguarded and only expended
after ratification of the prescription in accordance with article 20 of the ordinance
relating to the practice of pharmacy. Under these circumstances would it be proper to
consider the pharmacist as guilty of the offense of simple imprudence with violation
of the regulation of the said faculty? The Supreme Court has decided this question in
the negative on the ground that the fact of the pharmacist having forgotten and left
behind, during the short time he was out walking, the key of the closet in which in
conformity with the pharmacy ordinances, he kept the most powerful and active
drugs, properly considered, does not constitute the culpable negligence referred to in
article 581 of the Penal Code, nor was it the proximate and immediate cause of the
said prescription being filled in his store without being properly ratified by the
physician who signed it, as required by the said ordinances. The Court held,
therefore, that the trial court committed an error of law in holding the appellant
liable. (Decision of December 23, 19881; Official Gazette of April 14, 1882.)
See also the recent decision of the Tribunal Supremo de Espaa dated July 11, 1906, wherein
the doctrine is reaffirmed in a case involving the alleged negligence of certain railroad
employees in handling railroad cars.
Doubtless a presumption of negligence will frequently arise from the very fact that an
accident occurred at the time when the accused was violating a regulation; especially if the
regulation has for its object the avoidance of such an accident. But this presumption may, of

course, be rebutted in criminal as well as in civil cases by competent evidence. In the

Federal Court of the United States the rule is stated as follows:
Where a ship at the time of collision is in actual violation of a statutory rule intended
to prevent collisions the burden is upon her of showing that her fault could not have
been a contributory cause of the collision. (7 Cyc., 370 and numerous other cases
there cited.)
The evidence of record in the case at bar clearly and satisfactorily discloses that even if the
train was running at a speed slightly in excess of the maximum speed prescribed in the
regulations, that fact had no causal relation to the accident and in no wise contributed to it.
The judgment convicting and sentencing the appellant in this case should be reversed, and
the accused acquitted of the offense with which he is charged in the information, and his bail
bond exonerated, with the costs of both instances de officio. So ordered.
TORRES, J., dissenting:
The writer is of the opinion that the defendant should be sentenced for the crime of reckless
negligence to eight months of prision correccional, the accessories, indemnity and costs with
subsidiary imprisonment.

G.R. No. L-7760

October 1, 1914

E.
M.
vs.
MANILA ELECTRIC R.R. & LIGHT CO., defendant-appellant.
W. A. Kincaid, Thomas L. Hartigan, and
Bruce, Lawrence, Ross & Block for defendant.

Jose

WRIGHT, plaintiff-appellant,

Robles

Lahesa

for

plaintiff.

MORELAND, J.:
This is an action brought to recover damages for injuries sustained in an accident which
occurred in Caloocan on the night of August 8, 1909.
The defendant is a corporation engaged in operating an electric street railway in the city of
Manila and its suburbs, including the municipality of Caloocan. The plaintiff's residence in
Caloocan fronts on the street along which defendant's tracks run, so that to enter his
premises from the street plaintiff is obliged to cross defendant's tracks. On the night
mentioned plaintiff drove home in a calesa and in crossing the tracks to enter his premises
the horse stumbled, leaped forward, and fell, causing the vehicle with the rails, resulting in a
sudden stop, threw plaintiff from the vehicle and caused the injuries complained of.
It is undisputed that at the point where plaintiff crossed the tracks on the night in question
not only the rails were above-ground, but that the ties upon which the rails rested projected
from one-third to one-half of their depth out of the ground, thus making the tops of the rails
some 5 or 6 inches or more above the level of the street.
It is admitted that the defendant was negligent in maintaining its tracks as described, but it
is contended that the plaintiff was also negligent in that he was intoxicated to such an
extent at the time of the accident that he was unable to take care of himself properly and
that such intoxication was the primary cause of the accident.
The trial court held that both parties were negligent, but that the plaintiff's negligence was
not as great as defendant's and under the authority of the case of Rakes vs. A. G. & P. Co. (7
Phil. Rep., 359) apportioned the damages and awarded plaintiff a judgment of P1,000.
The question before us is stated by the defendant thus: "Accepting the findings of the trial
court that both plaintiff and defendant were guilty of negligence, the only question to be
considered is whether the negligence of plaintiff contributed t the 'principal occurrence' or
'only to his own injury.' If the former, he cannot recover; if the latter, the trial court was
correct in apportioning the damages."
The questioned as stated by plaintiff is as follows: "The main question at issue is whether or
not the plaintiff was negligent, and, if so, to what extent. If the negligence of the plaintiff
was the primary cause of the accident then, of course, he cannot recover; if his negligence
had nothing to do with the accident but contributed to his injury, then the court was right in
apportioning the damages, but if there was no negligence on the part of the plaintiff, then
he should be awarded damages adequates to the injury sustained."
In support of the defendant's contention counsel says: "Defendant's negligence was its
failure properly to maintain the track; plaintiff's negligence was his intoxication; the
'principal occurrence' was plaintiff's fall from his calesa. It seems clear that plaintiff's
intoxication contributed to the fall; if he had been sober, it can hardly be doubted that he
would have crossed the track safely, as he had done a hundred times before."

While both parties appealed from the decision, the defendant on the ground that it was not
liable and the plaintiff on the ground that the damages were insufficient according to the
evidence, and while the plaintiff made a motion for a new trial upon the statutory grounds
and took proper exception to the denial thereof, thus conferring upon this court jurisdiction
to determine the question of fact, nevertheless, not all of the testimony taken on the trial, so
far as can be gathered from the record, has been brought to this court. There seems to have
been two hearings, one on the 31st of August and the other on the 28th of September. The
evidence taken on the first hearing is here; that taken on the second is not. Not all the
evidence taken on the hearings being before the court, we must refuse, under our rules, to
consider even that evidence which is here; and, in the decision of this case, we are,
therefore, relegated to the facts stated in the opinion of the court and the pleadings filed.
A careful reading of the decision of the trial court leads us to the conclusion that there is
nothing in the opinion which sustains the conclusion of the court that the plaintiff was
negligent with reference to the accident which is the basis of this action. Mere intoxication
establish a want of ordinary care. It is but a circumstance to be considered with the other
evidence tending to prove negligence. It is the general rule that it is immaterial whether a
man is drunk or sober if no want of ordinary care or prudence can be imputed to him, and no
greater degree of care is required than by a sober one. If one's conduct is characterized by a
proper degree of care and prudence, it is immaterial whether he is drunk or sober. (Ward vs.
Chicago etc., R. R. Co., 85 Wis., 601; H & T. C. R. Co. vs. Reason, 61 Tex., 613; Alger vs.
Lowell, 3 Allen, Mass., 402; Central R. R. Co. vs. Phinazee, 93 Ga., 488; Maguirevs. Middlesex
R. R. Co., 115 Mass., 239; Meyer vs. Pacific R. R. Co., 40 Mo., 151., Chicago & N. W. R. R.
Co. vs. Drake, 33 Ill. App., 114.)
If intoxication is not in itself negligence, what are the facts found by the trial court and
stated in its opinion upon which may be predicated the finding that the plaintiff did not use
ordinary care and prudence and that the intoxication contributed to the injury complained
of? After showing clearly and forcibly the negligence of the defendant in leaving its tracks in
the condition in which they were on the night of the injury, the court has the following to
say, and it is all that can be found in its opinion, with reference to the negligence of the
plaintiff: "With respect to the condition in which Mr. Wright was on returning to his house on
the night in question, the testimony of Doctor Kneedler, who was the physician who
attended him an hour after the accident, demonstrates that he was intoxicated. . . . .
If the defendant or its employees were negligent by reason of having left the rails and
a part of the ties uncovered in a street where there is a large amount of travel, the
plaintiff was no less negligent, he not having abstained from his custom of taking
more wine than he could carry without disturbing his judgment and his self-control,
he knowing that he had to drive a horse and wagon and to cross railroad tracks which
were to a certain extent dangerous by reason of the rails being elevated above the
level of the street.
If the plaintiff had been prudent on the night in question and had not attempted to
drive his conveyance while in a drunken condition, he would certainly have avoided
the damages which he received, although the company, on its part, was negligent in
maintaining its tracks in a bad condition for travel.

Both parties, therefore, were negligent and both contributed to the damages
resulting to the plaintiff, although the plaintiff, in the judgment of the court,
contributed in greater proportion to the damages that did the defendant.
As is clear from reading the opinion, no facts are stated therein which warrant the conclusion
that the plaintiff was negligent. The conclusion that if he had been sober he would not have
been injured is not warranted by the facts as found. It is impossible to say that a sober man
would not have fallen from the vehicle under the conditions described. A horse crossing the
railroad tracks with not only the rails but a portion of the ties themselves aboveground,
stumbling by reason of the unsure footing and falling, the vehicle crashing against the rails
with such force as to break a wheel, this might be sufficient to throw a person from the
vehicle no matter what his condition; and to conclude that, under such circumstances, a
sober man would not have fallen while a drunken man did, is to draw a conclusion which
enters the realm of speculation and guesswork.
It having been found that the plaintiff was not negligent, it is unnecessary to discuss the
question presented by the appellant company with reference to the applicability of the case
of Rakes vs. A. G. & P. Co., above; and we do not find facts in the opinion of the court below
which justify a larger verdict than the one found.
Arellano, C.J., Torres and Araullo, JJ., concur.
Separate Opinions
CARSON, J., dissenting:
I dissent. I think, in the first place, that before pronouncing judgment the parties should have
an opportunity, if they so desire, to correct the manifestly accidental omission from the
record of a part of the transcript of the record. It is very clear that when the case was
submitted, and the brief filed, both parties were under the mistaken impression that all the
evidence was in the record.
I think, furthermore, that if the case is to be decided on the findings of fact by the trial judge,
these findings sufficiently establish the negligence of the plaintiff.1awphil.net
The trail judge expressly found that
If the plaintiff had been prudent on the night in question and had not attempted to
drive his conveyance while in a drunken condition, he would certainly have avoided
the damages which he received, although the company, on its part was negligent in
maintaining its tracks in a bad condition for travel.
This is a finding of fact the fact of negligence and I know of no rule which requires the
trial court to set forth not only the ultimate facts found by it, but also all the evidentiary
facts on which such conclusions are based. The finding is not in conflict with the other facts
found by the trial judge, and though it is not fully sustained thereby, we must assume, if we
decline to examine the record, that there were evidentiary facts disclosed at the trial which
were sufficient to sustain the finding if negligence. "The statement of facts must contain only

those facts which are essential to a clear understanding of the issues presented and the
facts involved." (Act No. 190, sec. 133.)
The facts required to be found are the ultimate facts forming the issues presented by
the pleadings, and which constitute the fundation for a judgment, and not those that
are merely evidentiary facts, or to set forth and explain the means or processes by
which he arrived at such findings. Neither evidence, argument, nor comment has any
legitimate place in findings of facts. (Conlan vs. Grace, 36 Minn., 276, 282.)

G.R. No. L-6706

March 29, 1953

ALFREDO
JAVIER, petitioner,
vs.
HON. ANTONIO G. LUCERO, Judge of the Court of First Instance of Cavite; SALUD R.
ARCA and ALFREDO JAVIER, JR., respondents.
David
F.
Barrera
Jacinto, Santillan and Roxas for respondents.

for

petitioner.

BENGZON, J.:
In an action for alimony (Civil Case No. 5150, Cavite), the respondent judge, after hearing
the parties and their evidence, ordered Alfredo Javier to give a monthly allowance of P60 to
his wife Salud R. Arca and their son Alfredo Javier, Jr.
On April 14, 1953 the husband filed a notice of appeal, and on May 6, 1953, he submitted
the appeal bond and the record on appeal. Meanwhile the wife and the son presented on
April 30, 1953 a motion for "supportpendente lite" even pending the final determination of
the case on appeal". Whereupon on May 8, 1953, the judge directed Alfredo Javier to pay the
monthly pensions notwithstanding the pendency of his appeal.
Here comes Alfredo Javier with a petition for certiorari challenging such directive and
arguing, in his own words:
"1. The status of Salud R. Arca as wife of the petitioner is being contested;

"2. Alfredo Javier Jr. is over 21 years old on March 31, 1953 and no longer entitled to be
supported; and
"3. Even granting that Alfredo Javier, Jr. is entitled to support even if over 21 years of age to
complete his education or training for some profession, trade or vocation, the support could
not be paid because the decision is vague or silent on that point.
The facts, as found in the action for support, are these:
On November 19, 1937, plaintiff Salud R. Arca and defendant Alfredo Javier had their
marriage solemnized by Judge Mariano Nable of the Municipal Court of Manila. At the
time of their marriage, they had already begotten a son named Alfredo Javier Junior
who was born on December 2, 1931. Sometime in 1938, defendant Alfredo Javier left
for the United States on board a ship of the United States navy, for it appears that he
had joined the United States Navy since 1927, such at the time of his marriage with
plaintiff Salud R. Arca, defendant Alfredo Javier was already a enlisted man in the
United States Navy. Because of defendant Alfredo Javier's departure for the United
States in 1938, his wife Salud R. Arca, who is from Tanza, Cavite, chose to live with
defendant's parents at Naic, Cavite. But for certain incompatibility of character
(frictions having occurred between plaintiff Salud R. Arca and defendant's folks)
plaintiff Salud R. Arca had found it necessary to leave defendant's parents' abode and
transfer her residence to Tanza, Cavite her native place. Since then the relation
between plaintiff Salud R. Arca and defendant Alfredo Javier become strained such
that on August 13, 1940 defendant Alfredo Javier brought an action for divorce
against plaintiff Salud R. Arca before the Circuit Court of Mobile County, State of
Alabama, USA, docketed as Civil Case No. 14313 of that Court and marked as Exhibit
2 (c) in this case. Having received a copy of the complaint for divorce on September
23, 1940, plaintiff Salud R. Arca answering the complaint alleged in her answer
that she received a copy of the complaint on September 23, 1940 although she was
directed to file her answer thereto on or before September 13, 1940. In that answer
she filed, plaintiff Salud R. Arca averred among other things that defendant Alfredo
Javier was not a resident of Mobile County, State of Alabama, for the period of twelve
months preceding the institution of the complaint, but that he was a resident of Naic,
Cavite, Philippines. Another avernment of interest, which is essential to relate here, is
that under paragraph 5 of her answer to the complaint for divorce, Salud R. Arca
alleged that it was not true that the cause of their separation was desertion on her
part but that if the defendant Alfredo Javier was in the United States at that time and
she was not with him then it was because he was in active duty as an enlisted man of
the United States Navy, as a consequence of which he had to leave for the United
States without her. She further alleged that since his departure from the Philippines
for the United States, he had always supported her and her co-plaintiff Alfredo Javier
Junior through allotments made by the Navy Department of the United States
Government. She denied, furthermore, the allegation that she had abandoned
defendant's home at Naic, Cavite, and their separation was due to physical
impossibility for they were separated by about 10,000 miles from each other. At this
juncture, under the Old civil Code, the wife is not bound to live with her husband if
the latter has gone to ultra-marine colonies. Plaintiff Salud R. Arca, in her answer to
the complaint for divorce by defendant Alfredo Javier, prayed that the complaint for

divorce be dismissed. However, notwithstanding Salud R. Arca's averments in her

answer, contesting the jurisdiction of the Circuit Court of Mobile County, State of
Alabama, to take cognizance of the divorce proceeding filed by defendant Alfredo
Javier, as shown by her answer marked Exhibit 2 (d), nevertheless the Circuit Court of
Mobile County rendered judgment decreeing dissolution of the marriage of Salud R.
Arca and Alfredo Javier, and granting the latter a decree of divorce dated April 9,
1941, a certified copy of which is marked Exhibit 2(f). Thereupon, the evidence
discloses that some time in 1946 defendant Alfredo Javier returned to the Philippines
but went back to the United States.
In July, 1941, that is after securing a divorce from plaintiff Salud R. Arca on April 9,
1941 defendant Alfredo Javier married Thelma Francis, an American citizen and
bought a house and lot at 248 Brooklyn, New York City. In 1949, Thelma Francis,
defendant's American wife, obtained a divorce from him for reasons not disclosed by
the evidence, and later on, having retired from the United States Navy, defendant
Alfredo Javier returned to the Philippines, armed with two decrees of divorce one
against his first wife Salud R. Arca and the other against him by his second wife
Thelma Francis issued by the Circuit Court of Mobile County, State of Alabama,
USA, defendant Alfredo Javier married Maria Odvina before Judge Natividad AlmedaLopez of the Municipal Court of Manila on April 19, 1950, marked Exhibit 2 (b).
At the instance of plaintiff Salud R. Arca an information for bigamy was filed by the
City fiscal of manila on July 25, 1950 against defendant Alfredo Javier with the Court
of First Instance of Manila, docketed as Criminal Case No. 13310 and marked Exhibit
2 (a). However, defendant Alfredo Javier with the Court of First Instance of Manila was
acquitted of the charge of bigamy in a decision rendered by the Court of First
Instance of Manila through Judge Alejandro J. Panlilio, dated August 10, 1951,
predicated on the proposition that the marriage of defendant Alfredo Javier with
Maria Odvina was made in all good faith and in the honest belief that his marriage
with plaintiff Salud R. Arca had been legally dissolved by the decree of divorce
obtained by him from the Circuit Court of Mobile County, State of Alabama, USA,
which had the legal effect of dissolving the marital ties between defendant Alfredo
Javier and plaintiff Salud R. Arca. At this juncture, again, it is this Court's opinion that
defendant Alfredo Javier's acquittal in that Criminal Case No. 13310 of the Court of
First Instance of Manila by Judge Panlilio was due to the fact that the accused had no
criminal intent in contracting a second or subsequent marriage while his first
marriage was still subsisting.
Turning now to the petition for certiorari, we perceive that, as to its first ground the
respondent judge declared in his decision that Alfredo Javier and Salud Arca were married on
November 19, 1937 when they had already a natural son named Alfredo Javier Junior, born
December 2, 1931, and that, notwithstanding a decree of divorce which the husband Alfredo
obtained in the United States in 1941, their marriage still subsists. Such being the situation,
the principle in Francisco vs. Zandueta, 61 Phil., 752 on which petitioner entirely relies is not
controlling, inasmuch as the existence of the married relation and the paternity had been
established at least prima facie (cf. Sanchez vs. Zulueta, 68 Phil., 112.) Besides, as
respondents point out, this is strictly not alimony pendente lite, under Rule 63, but execution
of judgment pending appeal, under Rule 39.1

In connection with the second ground of the petition, respondents observe that under the
new Civil Code, article 290 support also includes the education of the person to be
supported "until he complete his education or training for some profession, trade or vocation
even beyond the age of majority" and on the basis of this article support was granted to
Alfredo Javier Junior. Said the Court, "while it is true that plaintiff Alfredo Javier Junior, who
was born on December 2, 1931, has reached the age of majority on December 2, 1952, yet,
under the last part of article 290 of the new Civil Code, support may be given him even
beyond the age of majority in order to enable him to complete his education, for some trade
or profession."
Now then, was the order issued in excess of jurisdiction or with grave abuse of discretion?
The court undoubtedly has jurisdiction, inasmuch as it was issued before the record on
appeal was submitted. (Sumulong vs. Imperial, 51 Phil., 251; Syquia vs. Concepcion, 60 Phil.,
186). Did the judge abuse his discretion?
Unquestionably, Alfredo Javier, Jr. is the son of petitioner Alfredo Javier, and if financial
assistance is to be rendered only at the termination of the appeal his education, or the
completion thereof, would be unduly delayed. That is good reason for immediate execution.
Petitioner claims that according to the records Alfredo Javier Jr. "is no longer studying". Yet
probably he stopped going to school due to lack of means, since the petitioner himself
admits that his son is just a pre-law graduate.
But the real grievance of petitioner is contained in the last portion of his pleading, which
says, "What Alfredo Javier now tries to avoid is to support a woman who has desperately
tried to put him in jail, when she accused him of bigamy." Such disgust is easily
understandable. But compliance with legal and contractual duties is not always pleasant.
Under the New Civil Code articles 303 and 921 the wife forfeits her husband's support after
"she has accused (him) of a crime for which the law prescribes imprisonment for six years or
more, and the accusation has been found to be false." Admittedly, he married a third time
without the first marriage having been dissolved; but he was cleared of the bigamy charge
for lack of criminal intent, inasmuch as he believed his divorce obtained in the U.S., had
already ended his first marriage to Salud r. Arca. Such acquittal is no different from an
acquittal on reasonable doubt, which in our opinion, and in the opinion of a member of the
code Commission that framed the New Civil code, would not be ground to forfeit her right to
support.2
Of course, the question whether Alfredo Javier's prosecution for bigamy and subsequent
acquittal extinguished his obligation to maintain his complaining spouse will definitely be
decided when the main case (No. 5150) is reviewed on appeal. Other aspects of the issue
could then undoubtedly be the subject of research and elucidation. Nevertheless, we briefly
explain our first impressions or provisional conclusion in the task of examining the alleged
misuse by respondent judge of his prerogatives. It is markworthy that the son has not
forfeited his right to support.
As the issues are presently framed, petitioner has failed to sustain the burden of
demonstrating the judge's clear error or grievous mistake in ordering execution of his
judgment pending appeal. Costs against petitioner.

Paras, C.J., Pablo, Montemayor, Reyes, Jugo, Bautista Angelo, Labrador, Concepcion and
Diokno, JJ., concur.

G.R. No. L-32611

November 3, 1930

CULION
ICE,
FISH
AND
ELECTRIC
CO.,
vs.
PHILIPPINE MOTORS CORPORATION, defendant-appellant.
Gibbs
and
Benj. S. Ohnick for appellee.

McDonough

INC., plaintiff-appellee,

for

appellant.

STREET, J.:
This action was instituted in the Court of First Instance of Manila by the Culion Ice, Fish &
Electric Co., Inc., for the purpose of recovering from the Philippine Motors Corporation the
sum of P11,350, with interest and costs. Upon hearing the cause the trial court gave
judgment in favor of the plaintiff to recover of the defendant the sum of P9,850, with interest
at 6 per centum per annum from March 24,1927, the date of the filing of the complaint, until
satisfaction of the judgment, with costs. From this judgment the defendant appealed.
The plaintiff and defendant are domestic corporations; and at the time of the incident with
which we are here concerned, H.D. Cranston was the representative of the plaintiff in the
City of Manila. At the same time the plaintiff was the registered owner of the motor
schooner Gwendoline, which was used in the fishing trade in the Philippine Islands. In
January, 1925, Cranston decided, if practicable, to have the engine on
the Gwendoline changed from a gasoline consumer to a crude oil burner, expecting thereby
to effect economy in the cost of running the boat. He therefore made known his desire to
McLeod & Co., a firm dealing in tractors, and was told by Mc Kellar, of said company, that he
might make inquiries of the Philippine Motors Corporations, which had its office on Ongpin
Street, in the City of Manila. Cranston accordingly repaired to the office of the Philippine
Motors Corporation and had a conference with C.E. Quest, its manager, who agreed to do
the job, with the understanding that payment should be made upon completion of the work.
The Philippine Motors Corporation was at this time engaged in business as an automobile
agency, but, under its charter, it had authority to deal in all sorts of machinery engines and

motors, as well as to build, operate, buy and sell the same and the equipment therof. Quest,
as general manager, had full charge of the corporations in all its branches.
As a result of the aforesaid interview, Quest, in company with Cranston, visited
the Gwendoline while it lay at anchor in the Pasig River, and the work of effecting the
change in the engine was begun and conducted under the supervision of Quest, chiefly by a
mechanic whom Quest took with him to the boat. In this work Quest had the assistance of
the members of the crew of the Gwendoline, who had been directed by Cranston to place
themselves under Quest's directions.
Upon preliminary inspection of the engine, Quest came to the conclusion that the principal
thing necessary to accomplish the end in view was to install a new carburetor, and a Zenith
carburetor was chosen as the one most adapted to the purpose. After this appliance had
been installed, the engine was tried with gasoline as a fuel, supplied from the tank already in
use. The result of this experiment was satisfactory. The next problem was to introduce into
the carburetor the baser fuel, consisting of a low grade of oil mixed with distillate. For this
purpose a temporary tank to contain the mixture was placed on deck above and at a short
distance from the compartment covering the engine. This tank was connected with the
carburetor by a piece of tubing, which was apparently not well fitted at the point where it
was connected with the tank. Owing to this fact the fuel mixture leaked from the tank and
dripped sown into the engine compartment. The new fuel line and that already in use
between the gasoline tank and carburetor were so fixed that it was possible to change from
the gasoline fuel to the mixed fuel. The purpose of this arrangement was to enable the
operator to start the engine on gasoline and then, after the engine had been operating for a
few moments, to switch to the new fuel supply. lawphil.net
In the course of the preliminary work upon the carburetor and its connections, it was
observed that the carburetor was flooding, and that the gasoline, or other fuel, was trickling
freely from the lower part to the carburetor to the floor. This fact was called to Quest's
attention, but he appeared to think lightly of the matter and said that, when the engine had
gotten to running well, the flooding would disappear.
After preliminary experiments and adjustments had been made the boat was taken out into
the bay for a trial run at about 5 p.m. or a little later, on the evening of January 30,1925. The
first part of the course was covered without any untoward development, other than he fact
that the engine stopped a few times, owing no doubt to the use of an improper mixture of
fuel. In the course of the trial Quest remained outside of the engine compartment and
occupied himself with making distillate, with a view to ascertaining what proportion of the
two elements would give best results in the engine.
As the boat was coming in from this run, at about 7:30 p.m. and when passing near Cavite,
the engine stopped, and connection again had to be made with the gasoline line to get a
new start. After this had been done the mechanic, or engineer, switched to the tube
connecting with the new mixture. A moment later a back fire occurred in the cylinder
chamber. This caused a flame to shoot back into the carburetor, and instantly the carburetor
and adjacent parts were covered with a mass of flames, which the members of the crew
were unable to subdue. They were therefore compelled, as the fire spread, to take to a boat,
and their escape was safely effected, but theGwendoline was reduced to a mere hulk. The

salvage from, the wreck, when sold, brought only the sum of P150. The value of the boat,
before the accident occured, as the court found, was P10,000.
A study of the testimony lead us to the conclusion that the loss of this boat was chargeable
to the negligence and lack of skill of Quest. The temporary tank in which the mixture was
prepared was apparently at too great an elevation from the carburetor, with the result that
when the fuel line was opened, the hydrostatic pressure in the carburetor was greater than
the delicate parts of the carburetor could sustain. This was no doubt the cause of the
flooding of the carburetor; and the result was that; when the back fire occurred, the external
parts of the carburetor, already saturated with gasoline, burst into flames, whence the fire
was quickly communicated to the highly inflammable material near-by. Ordinarily a back fire
from an engine would not be followed by any disaster, but in this case the leak along the
pipe line and the flooding of the carburetor had created a dangerous situation, which a
prudent mechanic, versed in repairs of this nature, would have taken precautions to avoid.
The back fire may have been due either to the fact that the spark was too advanced or the
fuel improperly mixed.
In this connection it must be remembered that when a person holds himself out as being
competent to do things requiring professional skill, he will be held liable for negligence if he
fails to exhibit the care and skill of one ordinarily skilled in the particular work which he
attempts to do. The proof shows that Quest had had ample experience in fixing the engines
of automobiles and tractors, but it does not appear that he was experienced in the doing of
similar work on boats. For this reason, possibly the dripping of the mixture form the tank on
deck and the flooding of the carburetor did not convey to his mind an adequate impression
of the danger of fire. But a person skilled in that particular sort of work would, we think have
been sufficiently warned from those circumstances to cause him to take greater and
adequate precautions against the danger. In other words Quest did not use the skill that
would have been exhibited by one ordinarily expert in repairing gasoline engines on boats.
There was here, in our opinion, on the part of Quest, a blameworthy antecedent
inadvertence to possible harm, and this constitutes negligence. The burning of
the Gwendoline may be said to have resulted from accident, but this accident was in no
sense an unavoidable accident. It would not have occured but for Quest's carelessness or
lack of skill. The test of liability is not whether the injury was accidental in a sense, but
whether Quest was free from blame.
We therefore see no escape from the conclusion that this accident is chargeable to lack of
skill or negligence in effecting the changes which Quest undertook to accomplish; and even
supposing that our theory as to the exact manner in which the accident occurred might
appear to be in some respects incorrect, yet the origin of the fire in not so inscrutable as to
enable us to say that it was casus fortuitus.
The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of
the Gwendolineduring the experimental run, the defendant corporation was in the position of
a bailee and that, as a consequence, the burden of proof was on the defendant to exculpate
itself from responsibility by proving that the accident was not due to the fault of Quest. We
are unable to accede to this point of view. Certainly, Quest was not in charge of the
navigation of the boat on this trial run. His employment contemplated the installation of new
parts in the engine only, and it seems rather strained to hold that the defendant corporation

had thereby become bailee of the boat. As a rule workmen who make repairs on a ship in its
owner's yard, or a mechanic who repairs a coach without taking it to his shop, are not
bailees, and their rights and liabilities are determined by the general rules of law, under
their contract. The true bailee acquires possession and what is usually spoken of as special
property in the chattel bailed. As a consequence of such possession and special property,
the bailee is given a lien for his compensation. These ideas seem to be incompatible with
the situation now under consideration. But though defendant cannot be held liable in the
supposition that the burden of proof had not been sustained by it in disproving the
negligence of its manager, we are nevertheless of the opinion that the proof shows by a
clear preponderance that the accident to the Gwendoline and the damages resulting
therefrom are chargeable to the negligence or lack of skill of Quest.
This action was instituted about two years after the accident in question had occured, and
after Quest had ceased to be manager of the defendant corporation and had gone back to
the United States. Upon these facts, the defendant bases the contention that the action
should be considered stale. It is sufficient reply to say that the action was brought within the
period limited by the statute of limitations and the situation is not one where the defense of
laches can be properly invoked.
It results that the judgment appealed from, awarding damages to the plaintiff in the amount
of P9,850, with interest, must be affirmed; and it is so ordered, with costs against the
appellant.
Avancea, C.J., Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

G.R. No. L-29889 May 31, 1979

VICTORINO
CUSI
and
PILAR
vs.
PHILIPPINE NATIONAL RAILWAYS, defendant-appellant.

POBRE, plaintiffs-appellees,

Leopoldo M. Abellera for appellant.

Francisco V. Marasigan for appellees.

GUERRERO, J.:
Direct appeal from the decision of the Court of First Instance of Rizal ordering defendantappellant to indemnify the plaintiffs- appellees in the total amount of Two Hundred ThirtyNine Thousand and Six Hundred Forty-Eight Pesos, and Seventy-Two Centavos (P239,648.72)
for injuries received in a collision caused by the gross negligence of defendant-appellant,
plus Ten Thousand Pesos (P10,000.00) as attorney's fees and expenses of litigation.
Upon the amended and supplemental complaints for damages filed by plaintiffs-appellees,
the spouses Victorino Cusi and Pilar Pobre before the Court of First Instance of Rizal against
the Manila Railroad Company, now the Philippine National Railways and duly answered by
the latter and after due hearing. the following facts appear as undisputed: On the night of
October 5, 1963, plaintiffs-appellees attended a birthday party inside the United Housing
Subdivision in Paranaque, Rizal. After the party which broke up at about 11 o'clock that
evening, the plaintiffs-appellees proceeded home in their Vauxhall car with Victorino Cusi at
the wheel. Upon reaching the railroad tracks, finding that the level crossing bar was raised
and seeing that there was no flashing red light, and hearing no whistle from any coming
train, Cusi merely slack ened his speed and proceeded to cross the tracks. At the same time,
a train bound for Lucena traversed the crossing, resulting in a collision between the two. The
impact threw the plaintiffs-appellees out of their car which was smashed. One Benjamin
Franco, who came from the same party and was driving a vehicle right behind them, rushed
to their aid and brought them. to San Juan de Dios Hospital for emergency treatment. Later,
the plaintiffs-appellees were transferred to the Philippine General Hospital. A week later,
Mrs. Cusi transferred to the Manila Doctors Hospital where Dr. Manuel Rivera, head of the
Orthopedic and Fracture Service of the Philippine General Hospital performed on her a
second operation and continued to treat her until her discharge from the hospital on
November 2, 1963. Thereafter, Dr. Rivera treated her as an out-patient until the end of
February, 1964 although by that time the fractured bones had not yet healed. Mrs. Cusi was
also operated on by Dr. Francisco Aguilar, Director of the National Orthopedic Hospital, in
May, 1964 and in August, 1965, after another operation in her upper body from the chest to
the abdomen, she was placed in cast for some three (3) months and her right arm
immobilized by reason of the past

As enumerated in the Medical Certificate (Exh. "J"), Mrs. Cusi suffered the following:
(1) Fracture open middle third humerus right
(2) Fracture mandible right paramedian
(3) Fracture fibula left distal
(4) Concussion, cerebral
(5) Abrasions, multiple (face, head, lumbosacral and extremities)
(6) Lacerations (2) right temporal
(7) Contusions with hematoma left forehead and parieto occipital right.
For these injuries, she underwent a total of four surgical opera. petitions in a period of two
years. As a result of the fracture on her right arm, there was a shortening of about 1 cm. of
that arm. She lost the flexibility of her wrist, elbow and shoulder. Up to the time she took the
witness stand in August, 1966, she still had an intermedullary nail in the bone of her right
arm Likewise, Victorino Cusi suffered brain injuries which affected his speech, memory,
sense of hearing and neck movement. For a long period, he also felt pain all over his body.
Victorino Cusi claimed that prior to the accident he was a successful businessman the
Special Assistant to the Dolor Lopez Enterprises, the managing partner of Cusi and Rivera
Partnership, the manager of his ricemill, and with substantial investments in other business
enterprises. As a result of his injuries, he was unable to properly attend to his various
business undertakings. On the other hand, his wife, Pilar, was a skilled music and piano
teacher. After the accident, she lost the dexterity of her fingers forcing her to quit her
profession. She also bore ugly scars on several parts of her body, and she suffered anxiety of
a possible miscarriage being then five (5) months pregnant at the time of the accident.
The defense is centered on the proposition that the gross negligence of Victorino Cusi was
the proximate cause of the collision; that had he made a full stop before traversing the
crossing as required by section 56(a) of Act 3992 (Motor Vehicle Law), he could have seen
and heard the approach of the train, and thus, there would have been no collision.
After a protracted trial, the lower court rendered the decision now subject of the appeal.
Defendant-appellant seeks the reversal of said decision; but should we affirm the same, that
the award be reduced to a reasonable amount.
As the action is predicated on negligence, the New Civil Code 1 making clear that "whoever
by act or omission causes damage to another, there being fault or negligence, is obliged to
pay for the damage done the crucial question posed in the petition at bar is the existence of
negligence on the part of defendant-appellant as found by the lower court.
1. The question of negligence being one of fact, the lower court's finding of negligence on
the part of the defendant-appellant deserves serious consideration by the Court. It

commands great respect and weight, the reason being that the trial judge, having the
advantage of hearing the parties testify and of observing their demeanor on the witness
stand, is better situated to make conclusions of facts. Thus, it has been the standing practice
of appellate courts to accord lower court's judgments the presumption of correctness. And
unless it can be shown that error or errors, substantial in character, be shown in the
conclusion arrived at, or that there was abuse in judicial scrutiny, We are bound by their
judgments. On this ground alone We can rest the affirmance of the judgment appealed
from. 2
2. Nor is the result different even if no such presumption were indulged in, that is, even if We
were to resolve whether or not there exist compelling reasons for an ultimate reversal.
The judicial pronouncement below that the gross negligence of defendant-appellant was the
proximate cause of the collision has been thoroughly reviewed by this Court and we fully
affirm the same.
Negligence has been defined by Judge Cooley in his work on Torts 3d ed sec. 1324 3 as "the
failure to observe for the protection of the interests of another person that degree of care,
precaution, and vigilance which the circumstances justly demand, whereby such other
person suffers injury." By such a test, it can readily be seen that there is no hard and fast
rule whereby such degree of care and vigilance is measured, it is dependent upon the
circumstances in which a person finds himself so situated. All that the law requires is that it
is always incumbent upon a person to use that care and diligence expected of reasonable
men under similar circumstances.
These are the circumstances attendant to the collision. Undisputably, the warning devices
installed at the railroad crossing were manually operated; there were only 2 shifts of guards
provided for the operation thereof one, the 7:00 A.M. to 3:00 P. M. shift, and the other, the
3:00 P.M. to 11:00 P.M. shift. On the night of the accident, the train for Lucena was on an
unscheduled trip after 11:00 P.M. During that precise hour, the warning devices were not
operating for no one attended to them. Also, as observed by the lower court, the locomotive
driver did not blow his whistle, thus: "... he simply sped on without taking an extra
precaution of blowing his whistle from a distance of 50 to 10 meters from the crossing. That
the train was running at full speed is attested to by the fact that notwithstanding the
application of the emergency brakes, the train did not stop until it reached a distance of
around 100 meters."
These facts assessed together show the inadequacy, nay, the absence, of precautions taken
by the defendant-appellant to warn the travelling public of the impending danger. It is clear
to Us that as the signal devices were wholly manually-operated, there was an urgent need
for a flagman or guard to man the crossing at all times. As it was, the crossing was left
unattended to after eleven o'clock every night and on the night of the accident. We cannot
in all reason justify or condone the act of the defendant-appellant allowing the subject
locomotive to travel through the unattended crossing with inoperative signal devices, but
without sending any of its employees to operate said signal devices so as to warn oncoming
motorists of the approach of one of its locomotives. It is not surprising therefore that the in
operation of the warning devices created a situation which was misunderstood by the riding
public to mean safe passage. Jurisprudence recognizes that if warning devices are installed

in railroad crossings, the travelling public has the right to rely on such warning devices to
put them on their guard and take the necessary precautions before crossing the tracks. A
need, therefore, exists for the railroad company to use reasonable care to keep such devices
in good condition and in working order, or to give notice that they are not operating, since if
such a signal is misunderstood it is a menace. 4 Thus, it has been held that if a railroad
company maintains a signalling device at a crossing to give warning of the approach of a
train, the failure of the device to operate is generally held to be evidence of negligence,
which maybe considered with all the circumstances of the case in determining whether the
railroad company was negligent as a matter of fact. 5
The set of circumstances surrounding the collision subject of this case is very much similar
to that of Lilius v. Manila Railroad Company, 59 Phil. 758 (1934), where this Court upheld the
lower court's finding of negligence on the part of defendant locomotive company upon the
following facts
... on the part of the defendant company, for not having had on that occasion
any semaphore at the crossing at Dayap to serve as a warning to passersby of
its existence in order that they might take the necessary precautions before
crossing the railroad; and, on the part of its employees the flagman and
switchman, for not having remained at his post at the crossing in question to
warn passersby of the approaching train; the station master, for failure to
send the said flagman and switchman to his post on time; and the engineer,
for not having taken the necessary precautions to avoid an accident, in view
of the absence of said flagman and switchman, by slackening his speed and
continuously ringing the bell and blowing the whistle before arriving at the
crossing.
Defendant-appellant rests its defense mainly on Section 56(a) of the Motor Vehicle Law.
Thus:
Section 56(a) Traversing through streets and railroad crossing, etc, All
vehicles moving on the public highways shall be brought to a full stop before
traversing any 'through street' or railroad crossing. Whenever any such
'through street' or crossing is so designated and signposted, it shall be
unlawful for the driver of any vehicle to fail to stop within twenty meters but
not less than two and one-half meters from such through street or railroad
crossing.
The defense presupposes that the failure of plaintiffs-appellees to stop before proceeding to
traverse the crossing constitutes contributory negligence, thereby precluding them from
recovering indemnity for their injuries and damages.
The candor of defendant-appellant in interposing such a defense is doubtful. As seemingly
observed by the lower court, the defense, through inadvertence or deliberateness, did not
pursue further the excepting clause of the same section thus to go on:

Provided, however, that the driver of a passenger automobile or motorcycle

may instead of coming to a full stop, slow down to not more than ten
kilometers per hour whenever it is apparent that no hazard exists.
After a thorough perusal of the facts attendant to the case, this Court is in fun accord with
the lower court. Plaintiff-appellee Victorino Cusi had exercised all the necessary precautions
required of him as to avoid injury to -himself and to others. We find no need for him to have
made a full stop; relying on his faculties of sight and hearing, Victorino Cusi had no reason to
anticipate the impending danger. The record shows that the spouses Cusi previously knew of
the existence of the railroad crossing, having stopped at the guardhouse to ask for directions
before proceeding to the party. At the crossing, they found the level bar raised, no warning
lights flashing nor warning bells ringing, nor whistle from an oncoming train. They safely
traversed the crossing. On their return home, the situation at the crossing did not in the
least change, except for the absence of the guard or flagman. Hence, on the same
impression that the crossing was safe for passage as before, plaintiff-appellee Victorino Cusi
merely slackened his speed and proceeded to cross the tracks, driving at the proper rate of
speed for going over railroad crossings. Had defendant-appellant been successful in
establishing that its locomotive driver blew his whistle to warn motorists of his approach to
compensate for the absence of the warning signals, and that Victorino Cusi, instead of
stopping or slackening his speed, proceeded with reckless speed and regardless of possible
or threatened danger, then We would have been put in doubt as to the degree of prudence
exercised by him and would have, in all probability, declared him negligent. 6 But as the
contrary was established, we remain convinced that Victorino Cusi had not, through his own
negligence, contributed to the accident so as to deny him damages from the defendantappellant.
The only question that now remains to be resolved is the reasonableness of the amount
awarded as damages to the plaintiffs- appellees.
The following actual expenses and losses are fully substantiated:
(a) Hospital bills of Mrs. Cusi from October, 1963 to May, 1964 in the amount
of Thirteen Thousand Five Hundred Fifty Pesos and Five Centavos
(P13,550.05);
(b) Another hospital bill of Mrs. Cusi in 1965 in the amount of Three Thousand
and One Pesos and Ninety Centavos (P3,001.90);
(c) Doctor's fees for two surgical operations performed on Mrs. Cusi by one Dr.
Manuel Rivera in the amount of One Thousand and Five Hundred Pesos
(Pl,500.00);
(d) Loss of Victorino's wrist watch valued at Two Hundred and Fifty Pesos
(P250.00);
(e) Loss of Pilar's half of her pair of demand earrings(l-carrats) valued at Two
Thousand Seven Hundred and Fifty Pesos (P2,750,00);

(f) Repair of the damaged Vauxhall car in the amount of Two Thousand Eight
Hundred and Ninety Four Pesos and Seventy- Seven Centavos (P2,894.77).
The total award of actual damages in the amount of Twenty Three Thousand Nine Hundred
Forty-Six Pesos and Seventy-Two Centavos (P23,946.72) is, therefore, correct.
The lower court awarded Twenty-One Thousand Six Hundred Pesos (P21,600.00) to Mrs. Cusi
for loss of income for the three years that she was under constant medical treatment, and
Fourteen Thousand Pesos (P14,000.00) for impairment of her earning capacity; and Forty
Thousand Pesos (P 40,000.00) to Mr. Cusi for loss of income for the eight months that he was
disabled and impairment of his earning capacity. We find the award reasonable. The records
show that Mrs. Cusi, previously a skilled piano teacher averaging a monthly income of Six
Hundred Pesos (P600.00), cannot now teach nor play the piano since the accident which
resulted in the loss of the dexterity of her fingers; likewise, Mr. Cusi cannot now vigorously
attend to his businesses which previously netted him a monthly average income of Five
Thousand Pesos (P5,000.00).
As regards the award of Twenty Thousand Pesos (P20,000.00) for profits which Victorino Cusi
failed to realize from a certain real estate transaction with the Dolor Lopez Enterprises, we
affirm the same as the defendant-appellant has failed to present an iota of evidence to
overcome plaintiffs-appellees' evidence credited by the lower court as to the certainty of the
materialization of the stated transaction.
The award of Seventy Thousand Pesos (P70,000.00) to Mrs. Cusi and Fifty Thousand Pesos
(P50,000.00) to Victorino Cusi as moral damages is not excessive. In their own respective
fields of endeavor, both were successful. Now they have to bear throughout their whole
lifetime the humiliation wrought by their physical deformities which no doubt affected, and
will continue to do so, their social lives, their financial undertakings, and even their mental
attitudes.
Likewise, the amount of Ten Thousand Pesos (P10,000.00) given as attorney's fees and
expenses of litigation is not unreasonable. The total amount of damages awarded by the
trial court should bear legal interest at 6% from the rendition of the j judgment, which was
on March 26, 1968.
WHEREFORE, the judgment of the lower court is hereby AFFIRMED with the modification that
the total amount of damages shall bear legal interest at six per cent (6%) from the rendition
of the decision dated March 26, 1968.
SO ORDERED.
Teehankee, (Chairman), Makasiar, Fernandez, De Castro, and Melencio-Herrera, JJ., concur.