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[G.R. No. 129792.

December 21, 1999]

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.

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 attorneys fees in their favor.


Jarco Marketing Corporation - owner of Syvels Department Store, Makati City
Leonardo Kong, Jose Tiope and Elisa Panelo - stores branch manager, operations
manager, and supervisor, respectively

Trial Courts Decison

Private respondents:

Ruled in favor of Petitioners

Ruled that the proximate cause of the fall of the counter on ZHIENETH was her
act of clinging to it.

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.The 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.

Spouses Conrado and Criselda Aguilar - parents of Zhieneth Aguilar


On 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvels
Department Store, Makati City. While CRISELDA was signing her credit card slip
at the payment and verification counter, her 6 year old daughter ZHIENETH
was pinned by the bulk of the stores gift-wrapping counter/structure.

ZHIENETH was 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. She died fourteen (14) days after the
accident on 22 May 1983, on the hospital bed. The cause of her death was
attributed to the injuries she sustained.

Private respondents demanded upon petitioners the reimbursement of the

hospitalization, medical bills and wake and funeral expenses 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 attorneys fees and
an unspecified amount for loss of income and exemplary damages.

Witness of Private Respondent: Gerardo Gonzales

Gerardo Gonzales accompanied ZHIENETH when she was brought to the emergency
room of the Makati Medical Center. 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.

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

Finally, private respondents vigorously maintained that the proximate cause of

ZHIENETHs 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 ZHIENETHs 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
courts rejection of Gonzales testimony as unworthy of credence.

As to private respondents 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.

Rejected the testimonies of the witnesses of petitioners. It found them biased

and prejudiced. It instead gave credit to the testimony of disinterested witness

The Court of Appeals then awarded


P50,000.00 by way of compensatory damages for the death of Zhieneth

Aguilar, with legal interest (6% p.a.) from 27 April 1984;


P99,420.86 as reimbursement for hospitalization expenses incurred; with legal

interest (6% p.a.) from 27 April 1984;


P100,000.00 as moral and exemplary damages;


P20,000.00 in the concept of attorneys fees; and



Private respondents sought a reconsideration of the decision but the same was denied
in the Court of Appeals resolution of 16 July 1997.
Court of Appeals Decision

Ruled in favor of Private Respondents and reversed the trial courts judgment

Found that petitioners were negligent in maintaining a structurally dangerous

counter. The counter was shaped like an inverted L 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.

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


whether the death of ZHIENETH was accidental or attributable to

negligence; and


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

Supreme Court:

denied petition

ruled in favor of Private respondents

Issue 1


An accident pertains to an unforeseen event in which no fault or negligence attaches to
the defendant. 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.

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. 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.[

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.

The test in determining the existence of negligence: 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

We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETHs
death could only be attributed to negligence.

This testimony of Gonzales pertaining to ZHIENETHs statement formed part of the res
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.

matters relating to declarations of pain or suffering and statements made to a physician

are generally considered declarations and admissions. All that is required for their

admissibility as part of the res gestae is 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.

Moreover, 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 stores 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.

Issue 2

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, 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. Since
negligence may be a felony and a quasi-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. 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.

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 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.

CRISELDA too, should be absolved from any contributory negligence. CRISELDA

momentarily released the childs 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 gift-wrapping counter was just four meters away
from CRISELDA. 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.

[G.R. No. 141258. April 9, 2003]

Petitioner required the respondents to replace the diamond with the same size and
quality. When they refused, the petitioner was forced to buy a replacement in the
amount of P30,000.

Respondent Rose Cabrido, manager of Dingdings Jewelry Shop, denied having entered
into any transaction with Tita Payag whom she met only after the latter came to the
jewelry shop to seek compensation from Santos for the broken piece of
jewelry. However, it was possible that Payag may have availed of their services as she
could not have known every customer who came to their shop.

Marilou admitted knowing Payag who came to Dingding sJewelry Shop to avail of their
services regarding a certain piece of jewelry. After a short conversation, Payag went
inside the shop to see Santos. When the precious stone was broken by Santos, Payag
demanded P15,000 from him. As the latter had no money, she turned to Marilou for
reimbursement apparently thinking that Marilou was the owner of the shop. [11]

For his part, Santos recalled that Payag requested him to dismount what appeared to
him was a sapphire. While clipping the setting with the use of a small pair of pliers, the
stone accidentally broke. Santos denied being an employee of DingdingsJewelry Shop.

LOURDES SUN, respondents.

Tomasa Sarmiento

Spouses Luis and Rose Sun-Cabrido owner of Dingdings Jewelry Shop
Ma. Lourdes (Marilou) Sun - em

Municipal Trial Court in Cities (MTCC) of Tagbilaran City

Zenon Santos goldsmith who removed the gem by twisting the setting with pliers, breaking
the diamond in the process

Ruled in favor of Petitioner Tomasa Sarmiento

Ordered Defendants to pay:


P30,000 actual damages


P3,000 moral damages


P5,000 attorneys fees


P2,000 litigation expenses


Legal interest of 6% from date of decision and 12% per annum from finality of
decision until amounts have been paid




Petitioner, Tomasa Sarmiento, states that sometime in April 1994, a friend, Dra. Virginia
Lao, requested her to find somebody to reset a pair of diamond earrings into two gold
rings. Accordingly, petitioner sent a certain Tita Payag with the pair of earrings to
Dingdings Jewelry Shop, owned and managed by respondent spouses Luis and Rose
Cabrido, which accepted the job order for P400.
Petitioner provided 12 grams of gold to be used in crafting the pair of ring settings. After
3 days, Tita Payag delivered to the jewelry shop one of Dra. Laos diamond earrings which
was earlier appraised as worth .33 carat and almost perfect in cut and clarity.
Respondent Ma. Lourdes (Marilou) Sun went on to dismount the diamond from its original
setting. Unsuccessful, she asked their goldsmith, Zenon Santos, to do it. Santos removed
the diamond by twisting the setting with a pair of pliers, breaking the gem in the

Regional Trial Court (RTC) of Tagbilaran City,


Ruled in favor of Respondents

reversed the decision of the MTCC,

absolved the respondents of any responsibility arising from breach of contract

Court of Appeals (CA)


Ruled in favor of Respondents

affirmed the judgment of the RTC

ISSUE: Who will be held liable

In the case at bar, it is beyond doubt that Santos acted negligently in dismounting the
diamond from its original setting. It appears to be the practice of the trade to use a miniature
wire saw in dismounting precious gems, such as diamonds, from their original settings
However, Santos employed a pair of pliers in clipping the original setting, thus resulting in
breakage of the diamond. The jewelry shop failed to perform its obligation with the ordinary
diligence required by the circumstances. It should be pointed out that Marilou examined the
diamond before dismounting it from the original setting and found the same to be in order. Its
subsequent breakage in the hands of Santos could only have been caused by his negligence
in using the wrong equipment. Res ipsa loquitur.

The facts show that Santos had been working at DingdingsJewelry Shop as goldsmith for
about 6 months accepting job orders through referrals from private respondents. On the
other hand, Payag stated that she had transacted with Dingdings Jewelry Shop on at least 10
previews occasions, always through Marilou. The preponderance of evidence supports the
view that Marilou and Zenon Santos were employed at DingdingsJewelry Shop in order to
perform activities which were usually necessary or desirable in its business.

Supreme Court

Ruled in favor of Petitioners

Granted petition and reversed CA decision

Respondent Spouses should be liable for the ff:


P30,000 as actual damages


P10,000 as moral damages

Obligations arising from contracts have the force of law between the contracting parties.
Corollarily, those who in the performance of their obligations are guilty of fraud,
negligence or delay and those who in any manner contravene the tenor thereof, are liable for
damages. The fault or negligence of the obligor consists in the omission of that diligence
which is required by the nature of the obligation and corresponds with the circumstances of
the persons, of the time and of the place.

We therefore hold that an obligation to pay actual damages arose in favor of the petitioner
against the respondents spouses who admittedly owned and managed
DingdingsJewelry Shop. It was proven that petitioner replaced the damaged jewelry in the
amount of P30,000.[30]

As a general rule, moral damages are not recoverable in actions for damages predicated on a
breach of contract for it is not one of the items enumerated under Article 2219 of the Civil
Code. Moral damages may be awarded in a breach of contract only when there is proof that
defendant acted in bad faith, or was guilty of gross negligence amounting to bad faith, or in
wanton disregard of his contractual obligation.
Santos was a goldsmith for more than 40 years. Given his long experience in the trade, he
should have known that using a pair of pliers instead of a miniature wire saw in dismounting
a precious stone like a diamond would have entailed an unnecessary risk of breakage. He
went on with it anyway. Hence, respondent spouses are liable for P10,000 as moral damages
due to the gross negligence of their employee.
However, private respondents refusal to pay the value of the damaged jewelry emanated
from an honest belief that they were not responsible therefor, hence, negating any basis for
the award of attorneys fees.