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IX. INTENTIONAL TORTS On December 19,1972, Lt. Dioscoro V.

Tagle, Metro Manila Police Chief


Document Examiner, after investigating other documents pertaining to the
alleged anomalous transactions, submitted a second laboratory crime report (Exh.
G.R. No. 81262 August 25, 1989 "B") reiterating his previous finding that the handwritings, signatures, and
GLOBE MACKAY CABLE AND RADIO CORP., and HERBERT C. initials appearing in the checks and other documents involved in the fraudulent
HENDRY, petitioners, vs. THE HONORABLE COURT OF APPEALS transactions were not those of Tobias. The lie detector tests conducted on Tobias
also yielded negative results.
and RESTITUTO M. TOBIAS, respondents.
Notwithstanding the two police reports exculpating Tobias from the anomalies
Private respondent Restituto M. Tobias was employed by petitioner and the fact that the report of the private investigator, was, by its own terms, not
Globe Mackay Cable and Radio Corporation (GLOBE MACKAY) in a dual yet complete, petitioners filed with the City Fiscal of Manila a complaint for
capacity as a purchasing agent and administrative assistant to the engineering estafa through falsification of commercial documents, later amended to just
operations manager. In 1972, GLOBE MACKAY discovered fictitious estafa. Subsequently five other criminal complaints were filed against Tobias,
purchases and other fraudulent transactions for which it lost several thousands of four of which were for estafa through Falsification of commercial document
pesos. while the fifth was for of Article 290 of' the Revised Penal Code (Discovering
Secrets Through Seizure of Correspondence).Two of these complaints were
According to private respondent it was he who actually discovered the refiled with the Judge Advocate General's Office, which however, remanded
anomalies and reported them on November 10, 1972 to his immediate superior them to the fiscal's office. All of the six criminal complaints were dismissed by
Eduardo T. Ferraren and to petitioner Herbert C. Hendry who was then the the fiscal. Petitioners appealed four of the fiscal's resolutions dismissing the
Executive Vice-President and General Manager of GLOBE MACKAY. criminal complaints with the Secretary of Justice, who, however, affirmed their
dismissal.
On November 11, 1972, one day after private respondent Tobias made the report,
petitioner Hendry confronted him by stating that he was the number one suspect, In the meantime, on January 17, 1973, Tobias received a notice (Exh. "F") from
and ordered him to take a one week forced leave, not to communicate with the petitioners that his employment has been terminated effective December 13,
office, to leave his table drawers open, and to leave the office keys. 1972. Whereupon, Tobias filed a complaint for illegal dismissal. The labor
arbiter dismissed the complaint. On appeal, the National Labor Relations
On November 20, 1972, when private respondent Tobias returned to work after Commission (NLRC) reversed the labor arbiter's decision. However, the
the forced leave, petitioner Hendry went up to him and called him a "crook" and Secretary of Labor, acting on petitioners' appeal from the NLRC ruling,
a "swindler." Tobias was then ordered to take a lie detector test. He was also reinstated the labor arbiter's decision. Tobias appealed the Secretary of Labor's
instructed to submit specimen of his handwriting, signature, and initials for order with the Office of the President. During the pendency of the appeal with
examination by the police investigators to determine his complicity in the said office, petitioners and private respondent Tobias entered into a compromise
anomalies. agreement regarding the latter's complaint for illegal dismissal.

On December 6,1972, the Manila police investigators submitted a laboratory Unemployed, Tobias sought employment with the Republic Telephone
crime report (Exh. "A") clearing private respondent of participation in the Company (RETELCO). However, petitioner Hendry, without being asked by
anomalies. RETELCO, wrote a letter to the latter stating that Tobias was dismissed by
GLOBE MACKAY due to dishonesty.
Not satisfied with the police report, petitioners hired a private investigator,
retired Col. Jose G. Fernandez, who on December 10, 1972, submitted a report Private respondent Tobias filed a civil case for damages anchored on alleged
(Exh. "2") finding Tobias guilty. This report however expressly stated that unlawful, malicious, oppressive, and abusive acts of petitioners. Petitioner
further investigation was still to be conducted. Hendry, claiming illness, did not testify during the hearings. The Regional Trial
Court (RTC) of Manila, Branch IX, through Judge Manuel T. Reyes rendered
Nevertheless, on December 12, 1972, petitioner Hendry issued a memorandum judgment in favor of private respondent by ordering petitioners to pay him
suspending Tobias from work preparatory to the filing of criminal charges eighty thousand pesos (P80,000.00) as actual damages, two hundred thousand
against him. pesos (P200,000.00) as moral damages, twenty thousand pesos (P20,000.00) as
exemplary damages, thirty thousand pesos (P30,000.00) as attorney's fees, and
costs. Petitioners appealed the RTC decision to the Court of Appeals. On the But while Article 19 lays down a rule of conduct for the government of human
other hand, Tobias appealed as to the amount of damages. However, the Court relations and for the maintenance of social order, it does not provide a remedy
of Appeals, an a decision dated August 31, 1987 affirmed the RTC decision in for its violation. Generally, an action for damages under either Article 20 or
toto. Petitioners' motion for reconsideration having been denied, the instant Article 21 would be proper.
petition for review on certiorari was filed.
Article 20, which pertains to damage arising from a violation of law, provides
The main issue in this case is whether or not petitioners are liable for damages to that:
private respondent.
Art. 20. Every person who contrary to law, wilfully or negligently causes
Petitioners contend that they could not be made liable for damages in the lawful damage to another, shall indemnify the latter for the same.
exercise of their right to dismiss private respondent.
However, in the case at bar, petitioners claim that they did not violate any
On the other hand, private respondent contends that because of petitioners' provision of law since they were merely exercising their legal right to dismiss
abusive manner in dismissing him as well as for the inhuman treatment he got private respondent. This does not, however, leave private respondent with no
from them, the Petitioners must indemnify him for the damage that he had relief because Article 21 of the Civil Code provides that:
suffered.
Art. 21. Any person who wilfully causes loss or injury to another in a manner
One of the more notable innovations of the New Civil Code is the codification that is contrary to morals, good customs or public policy shall compensate the
of "some basic principles that are to be observed for the rightful relationship latter for the damage.
between human beings and for the stability of the social order." [REPORT ON
THE CODE COMMISSION ON THE PROPOSED CIVIL CODE OF THE This article, adopted to remedy the "countless gaps in the statutes, which leave
PHILIPPINES, p. 39]. The framers of the Code, seeking to remedy the defect of so many victims of moral wrongs helpless, even though they have actually
the old Code which merely stated the effects of the law, but failed to draw out its suffered material and moral injury" [Id.] should "vouchsafe adequate legal
spirit, incorporated certain fundamental precepts which were "designed to remedy for that untold number of moral wrongs which it is impossible for
indicate certain norms that spring from the fountain of good conscience" and human foresight to provide for specifically in the statutes" [Id. it p. 40; See
which were also meant to serve as "guides for human conduct [that] should run also PNB v. CA, G.R. No. L-27155, May 18,1978, 83 SCRA 237, 247].
as golden threads through society, to the end that law may approach its supreme
ideal, which is the sway and dominance of justice" (Id.) Foremost among these In determining whether or not the principle of abuse of rights may be invoked,
principles is that pronounced in Article 19 which provides:
there is no rigid test which can be applied. While the Court has not hesitated to
apply Article 19 whether the legal and factual circumstances called for its
Art. 19. Every person must, in the exercise of his rights and in the performance application [See for e.g., Velayo v. Shell Co. of the Phil., Ltd., 100 Phil. 186
of his duties, act with justice, give everyone his due, and observe honesty and (1956); PNB v. CA, supra; Grand Union Supermarket, Inc. v. Espino, Jr., G.R.
good faith. No. L-48250, December 28, 1979, 94 SCRA 953; PAL v. CA, G.R. No. L-
46558, July 31,1981,106 SCRA 391; United General Industries, Inc, v. Paler
This article, known to contain what is commonly referred to as the principle of G.R. No. L-30205, March 15,1982,112 SCRA 404; Rubio v. CA, G.R. No.
abuse of rights, sets certain standards which must be observed not only in the 50911, August 21, 1987, 153 SCRA 183] the question of whether or not the
exercise of one's rights but also in the performance of one's duties. These principle of abuse of rights has been violated resulting in damages under Article
standards are the following: to act with justice; to give everyone his due; and to 20 or Article 21 or other applicable provision of law, depends on the
observe honesty and good faith. The law, therefore, recognizes a primordial circumstances of each case. And in the instant case, the Court, after examining
limitation on all rights; that in their exercise, the norms of human conduct set the record and considering certain significant circumstances, finds that all
forth in Article 19 must be observed. A right, though by itself legal because petitioners have indeed abused the right that they invoke, causing damage to
recognized or granted by law as such, may nevertheless become the source of private respondent and for which the latter must now be indemnified.
some illegality. When a right is exercised in a manner which does not conform
with the norms enshrined in Article 19 and results in damage to another, a legal The trial court made a finding that notwithstanding the fact that it was private
wrong is thereby committed for which the wrongdoer must be held responsible. respondent Tobias who reported the possible existence of anomalous
transactions, petitioner Hendry "showed belligerence and told plaintiff (private The next tortious act committed by petitioners was the writing of a letter to
respondent herein) that he was the number one suspect and to take a one week RETELCO sometime in October 1974, stating that Tobias had been dismissed
vacation leave, not to communicate with the office, to leave his table drawers by GLOBE MACKAY due to dishonesty. Because of the letter, Tobias failed to
open, and to leave his keys to said defendant (petitioner Hendry)" [RTC gain employment with RETELCO and as a result of which, Tobias remained
Decision, p. 2; Rollo, p. 232]. This, petitioners do not dispute. But regardless of unemployed for a longer period of time. For this further damage suffered by
whether or not it was private respondent Tobias who reported the anomalies to Tobias, petitioners must likewise be held liable for damages consistent with
petitioners, the latter's reaction towards the former upon uncovering the Article 2176 of the Civil Code. Petitioners, however, contend that they have a
anomalies was less than civil. An employer who harbors suspicions that an "moral, if not legal, duty to forewarn other employers of the kind of employee
employee has committed dishonesty might be justified in taking the appropriate the plaintiff (private respondent herein) was." [Petition, p. 14; Rollo, p. 15].
action such as ordering an investigation and directing the employee to go on a Petitioners further claim that "it is the accepted moral and societal obligation of
leave. Firmness and the resolve to uncover the truth would also be expected every man to advise or warn his fellowmen of any threat or danger to the latter's
from such employer. But the high-handed treatment accorded Tobias by life, honor or property. And this includes warning one's brethren of the possible
petitioners was certainly uncalled for. And this reprehensible attitude of dangers involved in dealing with, or accepting into confidence, a man whose
petitioners was to continue when private respondent returned to work on honesty and integrity is suspect" [Id.]. These arguments, rather than justify
November 20, 1972 after his one week forced leave. Upon reporting for work, petitioners' act, reveal a seeming obsession to prevent Tobias from getting a job,
Tobias was confronted by Hendry who said. "Tobby, you are the crook and even after almost two years from the time Tobias was dismissed.
swindler in this company." Considering that the first report made by the police
investigators was submitted only on December 10, 1972 [See Exh. A] the Finally, there is the matter of the filing by petitioners of six criminal complaints
statement made by petitioner Hendry was baseless. The imputation of guilt against Tobias. Petitioners contend that there is no case against them for
without basis and the pattern of harassment during the investigations of Tobias malicious prosecution and that they cannot be "penalized for exercising their
transgress the standards of human conduct set forth in Article 19 of the Civil right and prerogative of seeking justice by filing criminal complaints against an
Code. The Court has already ruled that the right of the employer to dismiss an employee who was their principal suspect in the commission of forgeries and in
employee should not be confused with the manner in which the right is exercised the perpetration of anomalous transactions which defrauded them of substantial
and the effects flowing therefrom. If the dismissal is done abusively, then the sums of money" [Petition, p. 10, Rollo, p. 11].
employer is liable for damages to the employee [Quisaba v. Sta. Ines-Melale
Veneer and Plywood Inc., G.R. No. L-38088, August 30, 1974, 58 SCRA While sound principles of justice and public policy dictate that persons shall
771; See also Philippine Refining Co., Inc. v. Garcia, G.R. No. L-21871,
have free resort to the courts for redress of wrongs and vindication of their rights
September 27,1966, 18 SCRA 107] Under the circumstances of the instant case,
[Buenaventura v. Sto. Domingo, 103 Phil. 239 (1958)], the right to institute
the petitioners clearly failed to exercise in a legitimate manner their right to
criminal prosecutions cannot be exercised maliciously and in bad faith [Ventura
dismiss Tobias, giving the latter the right to recover damages under Article 19 in
v. Bernabe, G.R. No. L-26760, April 30, 1971, 38 SCRA 5871.] Hence, in Yutuk
relation to Article 21 of the Civil Code. V. Manila Electric Co., G.R. No. L-13016, May 31, 1961, 2 SCRA 337, the
Court held that the right to file criminal complaints should not be used as a
But petitioners were not content with just dismissing Tobias. Several other weapon to force an alleged debtor to pay an indebtedness. To do so would be a
tortious acts were committed by petitioners against Tobias after the latter's clear perversion of the function of the criminal processes and of the courts of
termination from work. Towards the latter part of January, 1973, after the filing justice. And in Hawpia CA, G.R. No. L-20047, June 30, 1967. 20 SCRA 536 the
of the first of six criminal complaints against Tobias, the latter talked to Hendry Court upheld the judgment against the petitioner for actual and moral damages
to protest the actions taken against him. In response, Hendry cut short Tobias' and attorney's fees after making a finding that petitioner, with persistence, filed
protestations by telling him to just confess or else the company would file a at least six criminal complaints against respondent, all of which were dismissed.
hundred more cases against him until he landed in jail. Hendry added that, "You
Filipinos cannot be trusted." The threat unmasked petitioner's bad faith in the
To constitute malicious prosecution, there must be proof that the prosecution
various actions taken against Tobias. On the other hand, the scornful remark
was prompted by a design to vex and humiliate a person and that it was initiated
about Filipinos as well as Hendry's earlier statements about Tobias being a deliberately by the defendant knowing that the charges were false and
"crook" and "swindler" are clear violations of 'Tobias' personal dignity [See
groundless [Manila Gas Corporation v. CA, G.R. No. L-44190, October 30,1980,
Article 26, Civil Code].
100 SCRA 602]. Concededly, the filing of a suit by itself, does not render a
person liable for malicious prosecution [Inhelder Corporation v. CA, G.R. No.
52358, May 301983122 SCRA 576]. The mere dismissal by the fiscal of the
criminal complaint is not a ground for an award of damages for malicious cases, considering the number of anomalous transactions committed against
prosecution if there is no competent evidence to show that the complainant had GLOBE MACKAY. However, petitioners' good faith is belied by the threat
acted in bad faith [Sison v. David, G.R. No. L-11268, January 28,1961, 1 SCRA made by Hendry after the filing of the first complaint that one hundred more
60]. cases would be filed against Tobias. In effect, the possible filing of one hundred
more cases was made to hang like the sword of Damocles over the head of
In the instant case, however, the trial court made a finding that petitioners acted Tobias. In fine, considering the haste in which the criminal complaints were
in bad faith in filing the criminal complaints against Tobias, observing that: filed, the fact that they were filed during the pendency of the illegal dismissal
case against petitioners, the threat made by Hendry, the fact that the cases were
x x x Defendants (petitioners herein) filed with the Fiscal's Office of Manila a filed notwithstanding the two police reports exculpating Tobias from
involvement in the anomalies committed against GLOBE MACKAY, coupled
total of six (6) criminal cases, five (5) of which were for estafa thru falsification
by the eventual dismissal of all the cases, the Court is led into no other
of commercial document and one for violation of Art. 290 of the Revised Penal
conclusion than that petitioners were motivated by malicious intent in filing the
Code "discovering secrets thru seizure of correspondence," and all were
six criminal complaints against Tobias.
dismissed for insufficiency or lack of evidence." The dismissal of four (4) of the
cases was appealed to the Ministry of Justice, but said Ministry invariably
sustained the dismissal of the cases. As above adverted to, two of these cases Petitioners next contend that the award of damages was excessive. In the
were refiled with the Judge Advocate General's Office of the Armed Forces of complaint filed against petitioners, Tobias prayed for the following: one hundred
the Philippines to railroad plaintiffs arrest and detention in the military stockade, thousand pesos (P100,000.00) as actual damages; fifty thousand pesos
but this was frustrated by a presidential decree transferring criminal cases (P50,000.00) as exemplary damages; eight hundred thousand pesos
involving civilians to the civil courts. (P800,000.00) as moral damages; fifty thousand pesos (P50,000.00) as attorney's
fees; and costs. The trial court, after making a computation of the damages
incurred by Tobias [See RTC Decision, pp. 7-8; Rollo, pp. 154-1551, awarded
x x x To be sure, when despite the two (2) police reports embodying the findings
him the following: eighty thousand pesos (P80,000.00) as actual damages; two
of Lt. Dioscoro Tagle, Chief Document Examiner of the Manila Police
hundred thousand pesos (P200,000.00) as moral damages; twenty thousand
Department, clearing plaintiff of participation or involvement in the fraudulent
pesos (P20,000.00) as exemplary damages; thirty thousand pesos (P30,000.00)
transactions complained of, despite the negative results of the lie detector tests
which defendants compelled plaintiff to undergo, and although the police as attorney's fees; and, costs. It must be underscored that petitioners have been
guilty of committing several actionable tortious acts, i.e., the abusive manner in
investigation was "still under follow-up and a supplementary report will be
which they dismissed Tobias from work including the baseless imputation of
submitted after all the evidence has been gathered," defendants hastily filed six
guilt and the harassment during the investigations; the defamatory language
(6) criminal cases with the city Fiscal's Office of Manila, five (5) for estafa thru
heaped on Tobias as well as the scornful remark on Filipinos; the poison letter
falsification of commercial document and one (1) for violation of Art. 290 of the
Revised Penal Code, so much so that as was to be expected, all six (6) cases sent to RETELCO which resulted in Tobias' loss of possible employment; and,
were dismissed, with one of the investigating fiscals, Asst. Fiscal de Guia, the malicious filing of the criminal complaints. Considering the extent of the
damage wrought on Tobias, the Court finds that, contrary to petitioners'
commenting in one case that, "Indeed, the haphazard way this case was
contention, the amount of damages awarded to Tobias was reasonable under the
investigated is evident. Evident likewise is the flurry and haste in the filing of
circumstances.
this case against respondent Tobias," there can be no mistaking that defendants
would not but be motivated by malicious and unlawful intent to harass, oppress,
and cause damage to plaintiff. Yet, petitioners still insist that the award of damages was improper, invoking the
principle of damnum absque injuria. It is argued that "[t]he only probable actual
damage that plaintiff (private respondent herein) could have suffered was a
x x x [RTC Decision, pp. 5-6; Rollo, pp. 235-236].
direct result of his having been dismissed from his employment, which was a
valid and legal act of the defendants-appellants (petitioners herein).lâwphî1.ñèt "
In addition to the observations made by the trial court, the Court finds it [Petition, p. 17; Rollo, p. 18].
significant that the criminal complaints were filed during the pendency of the
illegal dismissal case filed by Tobias against petitioners. This explains the haste
According to the principle of damnum absque injuria, damage or loss which
in which the complaints were filed, which the trial court earlier noted. But
does not constitute a violation of a legal right or amount to a legal wrong is not
petitioners, to prove their good faith, point to the fact that only six complaints
actionable [Escano v. CA, G.R. No. L-47207, September 25, 1980, 100 SCRA
were filed against Tobias when they could have allegedly filed one hundred
197; See also Gilchrist v. Cuddy 29 Phil, 542 (1915); The Board of Liquidators
v. Kalaw, G.R. No. L-18805, August 14, 1967, 20 SCRA 987]. This principle Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing
finds no application in this case. It bears repeating that even granting that the April 21, 1999 Decision1 of the Court of Appeals (CA) in CA-GR CV No.
petitioners might have had the right to dismiss Tobias from work, the abusive 41451, which set aside the judgment2 of the Regional Trial Court (RTC) of
manner in which that right was exercised amounted to a legal wrong for which Tanay, Rizal. The RTC had earlier dismissed the Complaint for damages filed
petitioners must now be held liable. Moreover, the damage incurred by Tobias by herein respondents against petitioner. The dispositive portion of the
was not only in connection with the abusive manner in which he was dismissed challenged CA Decision reads as follows:
but was also the result of several other quasi-delictual acts committed by
petitioners. "WHEREFORE, the appealed Decision is SET ASIDE, and in its stead
judgment is rendered ordering the defendant-appellee Sergio Amonoy
Petitioners next question the award of moral damages. However, the Court has to pay the plaintiffs-appellants bruno and Bernadina Gutierrez as actual
already ruled in Wassmer v. Velez, G.R. No. L-20089, December 26, 1964, 12 damages the sum of [t]wo [h]undred [f]ifty [t]housand [p]esos
SCRA 648, 653, that [p]er express provision of Article 2219 (10) of the New (P250,000.00)."3
Civil Code, moral damages are recoverable in the cases mentioned in Article 21
of said Code." Hence, the Court of Appeals committed no error in awarding Likewise assailed is the October 19, 1999 CA Resolution,4 which denied the
moral damages to Tobias. Motion for Reconsideration.

Lastly, the award of exemplary damages is impugned by petitioners. Although The Facts
Article 2231 of the Civil Code provides that "[i]n quasi-delicts, exemplary
damages may be granted if the defendant acted with gross negligence," the Court, The appellate court narrated the factual antecedents of this case as follows:
in Zulueta v. Pan American World Airways, Inc., G.R. No. L- 28589, January 8,
1973, 49 SCRA 1, ruled that if gross negligence warrants the award of
exemplary damages, with more reason is its imposition justified when the act "This case had its roots in Special Proceedings No. 3103 of Branch I of
performed is deliberate, malicious and tainted with bad faith. As in the CFI of Pasig, Rizal, for the settlement of the estate of the deceased
the Zulueta case, the nature of the wrongful acts shown to have been committed Julio Cantolos, involving six(6) parcels of land situated in Tanay Rizal.
by petitioners against Tobias is sufficient basis for the award of exemplary Amonoy was the counsel of therein Francisca Catolos, Agnes Catolos,
damages to the latter. Asuncion Pasamba and Alfonso Formida. On 12 January 1965, the
Project of Partition submitted was approved and xxx two (2) of the said
lots were adjudicated to Asuncion Pasamba and Alfonso Formilda. The
WHEREFORE, the petition is hereby DENIED and the decision of the Court of Attorney's fees charged by Amonoy was P27,600.00 and on 20 January
Appeals in CA-G.R. CV No. 09055 is AFFIRMED. SO ORDERED. 1965 Asuncion Pasamba and Alfonso Formida executed a deed of real
estate mortgage on the said two (2) lots adjudicated to them, in favor of
G.R. No. 140420 February 15, 2001 Amonoy to secure the payment of his attorney's fees. But it was only on
SERGIO AMONOY, petitioner, vs. Spouses JOSE GUTIERREZ and 6 August 1969 after the taxes had been paid, the claims settled and the
properties adjudicated, that the estate was declared closed and
ANGELA FORNIDA, respondents. terminated.

Damnum absque injuria. Under this principle, the legitimate exercise of a "Asuncion Pasamba died on 24 February 1969 while Alfonso Fornilda
person's rights, even if it causes loss to another, does not automatically result in passsed away on 2 July 1969. Among the heirs of the latter was his
an actionable injury. The law does not prescribe a remedy for the loss. This daughter, plaintiff-appellant Angela Gutierrez.
principle does not, however, apply when there is an abuse of a person's right, or
when the exercise of this right is suspended or extinguished pursuant to a court
order. Indeed, in the availment of one's rights, one must act with justice, give "Because his Attorney's fess thus secured by the two lots were not paid, on 21
their due, and observe honesty and good faith January 1970 Amonoy filed for their foreclosure in Civil Code4 No. 12726
entitled Sergio Amonoy vs. Heirs of Asuncion Pasamba and Heirs of Alfonso
Fornilda before the CFI of Pasig, Rizal, and this was assigned to Branch VIII.
The Case The heirs opposed, contending that the attorney's fees charged [were]
unconscionable and that the attorney's fees charged [were] unconscionable and
that the agreed sum was only P11,695.92. But on 28 September 1972 judgment But by the time the Supreme Court promulgated the abovementioned Decision,
was rendered in favor of Amonoy requiring the heirs to pay within 90 days the respondents' house had already been destroyed, supposedly in accordance with a
P27,600.00 secured by the mortgage, P11,880.00 as value of the harvests, and Writ of Demolition ordered by the lower court.
P9,645.00 as another round of attorney's fees. Failing in that, the two (2) lots
would be sold at public auction. Thus, a Complaint for damages in connection with the destruction of their house
was filed by respondents against petitioner before the RTC on December 15,
"They failed to pay. On 6 February 1973, the said lots were foreclosed and on 23 1989.
March 1973 the auction sale was held where Amonoy was the highest bidder at
P23,760.00. On 2 May 1973 his bid was judicially confirmed. A deficiency was In its January 27, 1993 Decision, the RTC dismissed respondents' suit. On
claimed and to satisfy it another execution sale was conducted, and again the appeal, the CA set aside the lower court's ruling and ordered petitioner to pay
highest bidder was Amonoy at P12,137.50. respondents P250,000 as actual damages. Petitioner then filed a Motion for
Reconsideration, which was also denied.
"Included in those sold was the lot on which the Gutierrez spouses had their
house. The Issue

"More than a year after the Decision in Civil Code No. 12726 was rendered, the In his Memorandum,7 petitioner submits this lone issue for our consideration:
said decedent's heirs filed on 19 December 1973 before the CFI of Pasig, Rixal[,]
Civil case No. 18731 entitled Maria Penano, et al vs. Sergio Amonoy, et al, a "Whether or not the Court of Appeals was correct was correct in deciding that
suit for the annulment thereof. The case was dismissed by the CFI on 7
the petition [was] liable to the respondents for damages." 8
November 1977, and this was affirmed by the Court of Appeals on 22 July 1981.
The Court's Ruling
"Thereafter, the CFI on 25 July 1985 issued a Writ of Possession and pursuant to
which a notice to vacate was made on 26 August 1985. On Amonoy's motion of
24 April 1986, the Orders of 25 April 1986 and 6 May 1986 were issued for the The Petition has no merit.
demolition of structures in the said lots, including the house of the Gutierrez
spouses. Main Issue:

"On 27 September 1985 the petition entitled David Fornilda, et al vs Branch Petitioner's Liability
164 RTC Ivth Pasig, Deputy Sheriff Joaquin Antonil and Atty. Sergio
Amonoy, G.R. No. L-72306, was filed before the Supreme Court. Among the Well-settled is the maxim that damage resulting from the legitimate exercise of a
petitioners was the plaintiff-appellant Angela Gutierrez. On a twin musiyun person's rights is a loss without injury- damnum absque injuria - for which the
(Mahigpit na Musiyon Para Papanagutin Kaugnay ng Paglalapastangan) with law gives no remedy.9 In other words, one who merely exercises one's rights
full titles as fanciful and elongated as their Petisyung (Petisyung Makapagsuri does no actionable injury and cannot be held liable for damages.
Taglay and Pagpigil ng Utos), a temporary restraining order was granted on 2
June 1986 enjoining the demolition of the petitioners' houses. Petitioner invokes this legal precept in arguing that he is not liable for the
demolition of respondents' house. He maintains that he was merely acting in
"Then on 5 October 1988 a Decision was rendered in the said G.R. No. L-72306 accordance with the Writ of Demolition ordered by the RTC.
disposing that:
We reject this submission. Damnum absque injuria finds no application to this
"WHEREFORE, Certiorari is granted; the Order of respondent Trial Court, case.
dated 25 July 1985, granting a Writ of Possession, as well as its Orderd, dated
25 April 1986 and 16 May 1986, directing and authorizing respondent Sheriff to True, petitioner commenced the demolition of respondents' house on May 30,
demolish the houses of petitioners Angela and Leocadia Fornilda are hereby 1986 under the authority of a Writ of Demolition issued by the RTC. But the
ordered returned to petitioners unless some of them have been conveyed to records show that a Temporary Restraining Order (TRO), enjoining the
innocent third persons."5 demolition of respondents' house, was issued by the Supreme Court on June 2,
1986. The CA also found, based on the Certificate of Service of the Supreme this reason it is not permissible to abuse our rights to prejudice
Court process server, that a copy of the TRO was served on petitioner himself on others."12
June 4, 1986.
Likewise, in Albenson Enterprises Corp. v. CA,13 the Court discussed the
Petitioner, howeverm, did not heed the TRO of this Court. We agree with the concept of abuse of rights as follows:
CA that he unlawfully pursued the demolition of respondents' house well until
the middle of 1987. This is clear from Respondent Angela Gutierrez's testimony. "Artilce 19, known to contain what is commonly referred to as the
The appellate court quoted the following pertinent portion thereof: 10 principle of abuse of rights, sets certain standards which may be
observed not only in the exercise of one's rights but also in the
"Q. On May 30, 1986, were they able to destroy your house? performance of one's duties.These standards are the following: to act
"A. Not all, a certain portion only with justice; to give everyone his due; recognizes the primordial
xxx xxx xxx limitation on all rights: that in their exercise, the norms of human
"Q. Was your house completely demolished? conduct set forth in Article 19 and results in damage to another, a legal
"A. No, sir. wrong is thereby committed for which the wrongdoer must be held
xxx xxx xxx responsible xxx."
"Q. Until when[,] Mrs. Witness?
"A. Until 1987. Clearly then, the demolition of respondents' house by petitioner, despite his
"Q. About what month of 1987? receipt of the TRO, was not only an abuse but also an unlawful exercise of such
"A. Middle of the year. right. In insisting on his alleged right, he wantonly violated this Court's Order
"Q. Can you tell the Honorable Court who completed the demolition? and wittingly caused the destruction of respondents; house.1âwphi1.nêt
A. The men of Fiscal Amonoy."11
Obviously, petitioner cannot invoke damnum absque injuria, a principle
The foregoing disproves the claim of petitioner that the demolition, which premised on the valid exercise of a right.14Anything less or beyond such exercise
allegedly commenced only on May 30, 1986, was completed the following day. will not give rise to the legal protection that the principle accords. And when
It likewise belies his allegation that the demolitions had already ceased when he damage or prejudice to another is occasioned thereby, liability cannot be
received notice of the TRO. obscured, much less abated.

Although the acts of petitioner may have been legally justified at the outsset, In the ultimate analysis, petitioner's liability is premised on the obligation to
their continuation after the issuance of the TRO amounted to an insidious abuse repair or to make whole the damage caused to another by reason of one's act or
of his right. Indubitably, his actions were tainted with bad faith. Had he not omission, whether done intentionally or negligently and whether or not
insisted on completing the demolition, respondents would not have suffered the punishable by law.15
loss that engendered the suit before the RTC. Verily, his acts constituted not
only an abuse of a right, but an invalid exercise of a right that had been WHEREFORE, the Petition is DENIED and the appealed
suspended when he received thae TRO from this Court on June 4, 1986. By then Decision AFFIRMED. Costs against petitioner. SO ORDERED.
he was no longer entitled to proceed with the demolition.

A commentator on this topic explains:


G.R. No. 132344,February 17, 2000
UNIVERSITY OF THE EAST, petitioner, vs. ROMEO A.
"The exercise of a right ends when the right disappears, and it JADER, respondent.
disappears when it is abused, especially to the prejudice of others. The
mask of a right without the spirit of justcie which gives it life, is May an educational institution be held liable for damages for misleading a
repugnant to the modern concept of social law. It cannot be said that a student into believing that the latter had satisfied all the requirements for
person exercises a right when he unnecessarily prejudices another xxx. graduation when such is not the case? This is the issue in the instant petition for
Over and above the specific precepts of postive law are the supreme review premised on the following undisputed facts as summarized by the trial
norms of justice xxx; and he who violates them violates the law. For court and adopted by the Court of Appeals (CA),1 to wit:
Plaintiff was enrolled in the defendants' College of Law from 1984 up to 1988. He thereafter prepared himself for the bar examination. He took a leave of
In the first semester of his last year (School year 1987-1988), he failed to take absence without pay from his job from April 20, 1988 to September 30, 1988
the regular final examination in Practice Court I for which he was given an (Exhibit "G") and enrolled at the pre-bar review class in Far Eastern University.
incomplete grade (Exhibits "2", also Exhibit "H"). He enrolled for the second (Exhibits "F" to "F-2"). Having learned of the deficiency he dropped his review
semester as fourth year law student (Exhibit "A") and on February 1, 1988 he class and was not able to take the bar examination.2
filed an application for the removal of the incomplete grade given him by
Professor Carlos Ortega (Exhibits "H-2", also Exhibit "2") which was approved Consequently, respondent sued petitioner for damages alleging that he suffered
by Dean Celedonio Tiongson after payment of the required fee. He took the moral shock, mental anguish, serious anxiety, besmirched reputation, wounded
examination on March 28, 1988. On May 30, 1988, Professor Carlos Ortega feelings and sleepless nights when he was not able to take the 1988 bar
submitted his grade. It was a grade of five (5). (Exhibits "H-4", also Exhibits "2- examinations arising from the latter's negligence. He prayed for an award of
L", "2-N"). moral and exemplary damages, unrealized income, attorney's fees, and costs of
suit.
In the meantime, the Dean and the Faculty Members of the College of Law met
to deliberate on who among the fourth year students should be allowed to In its answer with counterclaim, petitioner denied liability arguing mainly that it
graduate. The plaintiff's name appeared in the Tentative List of Candidates for never led respondent to believe that he completed the requirements for a
graduation for the Degree of Bachelor of Laws (LL.B) as of Second Semester Bachelor of Laws degree when his name was included in the tentative list of
(1987-1988) with the following annotation: graduating students. After trial, the lower court rendered judgment as follows:

JADER ROMEO A. WHEREFORE, in view of the foregoing judgment is hereby rendered in favor of
the plaintiff and against the defendant ordering the latter to pay plaintiff the sum
Def. Conflict of Laws — x-1-87-88, Practice Court I Inc., 1-87-88 C-1 to submit of THIRTY FIVE THOUSAND FOUR HUNDRED SEVENTY PESOS
transcript with S.O. (Exhibits "3", "3-C-1", "3-C-2"). (P35,470.00) with legal rate of interest from the filing of the complaint until
fully paid, the amount of FIVE THOUSAND PESOS (P5,000.00) as attorney's
The 35th Investitures & Commencement Ceremonies for the candidates of fees and the cost of suit.
Bachelor of Laws was scheduled on the 16th of April 1988 at 3:00 o'clock in the
afternoon, and in the invitation for that occasion the name of the plaintiff Defendant's counterclaim is, for lack of merit, hereby dismissed. SO
appeared as one of the candidates. (Exhibits "B", "B-6", "B-6-A"). At the foot of ORDERED.3
the list of the names of the candidates there appeared however the following
annotation: which on appeal by both parties was affirmed by the Court of Appeals (CA)
with modification. The dispositive portion of the CA decision reads:
This is a tentative list Degrees will be conferred upon these candidates who
satisfactorily complete requirements as stated in the University Bulletin and as WHEREFORE, in the light of the foregoing, the lower Court's Decision is
approved of the Department of Education, Culture and Sports (Exhibit "B-7-A"). hereby AFFIRMED with the MODIFICATION that defendant-appellee, in
addition to the sum adjudged by the lower court in favor of plaintiff-appellant, is
The plaintiff attended the investiture ceremonies at F. dela Cruz Quadrangle, also ORDERED to pay plaintiff-appellant the amount of FIFTY THOUSAND
U.E., Recto Campus, during the program of which he went up the stage when (P50,000.00) PESOS for moral damages. Costs against defendant-appellee. SO
his name was called, escorted by her (sic) mother and his eldest brother who ORDERED.4
assisted in placing the Hood, and his Tassel was turned from left to right, and he
was thereafter handed by Dean Celedonio a rolled white sheet of paper Upon the denial of its motion for reconsideration, petitioner UE elevated the
symbolical of the Law Diploma. His relatives took pictures of the occasion case to this Court on a petition for review under Rule 45 of the Rules of Court,
(Exhibits "C" to "C-6", "D-3" to "D-11"). arguing that it has no liability to respondent Romeo A. Jader, considering that
the proximate and immediate cause of the alleged damages incurred by the latter
He tendered a blow-out that evening which was attended by neighbors, friends arose out of his own negligence in not verifying from the professor concerned
and relatives who wished him good luck in the forthcoming bar examination. the result of his removal exam.
There were pictures taken too during the blow-out (Exhibits "D" to "D-1").
The petition lacks merit. The college dean is the senior officer responsible for the operation of an
academic program, enforcement of rules and regulations, and the supervision of
When a student is enrolled in any educational or learning institution, a contract faculty and student services.7 He must see to it that his own professors and
of education is entered into between said institution and the student. The teachers, regardless of their status or position outside of the university, must
professors, teachers or instructors hired by the school are considered merely as comply with the rules set by the latter. The negligent act of a professor who fails
agents and administrators tasked to perform the school's commitment under the to observe the rules of the school, for instance by not promptly submitting a
contract. Since the contracting parties are the school and the student, the latter is student's grade, is not only imputable to the professor but is an act of the school,
not duty-bound to deal with the former's agents, such as the professors with being his employer.
respect to the status or result of his grades, although nothing prevents either
professors or students from sharing with each other such information. The Court Considering further, that the institution of learning involved herein is a
takes judicial notice of the traditional practice in educational institutions wherein university which is engaged in legal education, it should have practiced what it
the professor directly furnishes his/her students their grades. It is the contractual inculcates in its students, more specifically the principle of good dealings
obligation of the school to timely inform and furnish sufficient notice and enshrined in Articles 19 and 20 of the Civil Code which states:
information to each and every student as to whether he or she had already
complied with all the requirements for the conferment of a degree or whether Art. 19. Every person must, in the exercise of his rights and in the
they would be included among those who will graduate. Although performance of his duties, act with justice, give everyone his due, and
commencement exercises are but a formal ceremony, it nonetheless is not an observe honesty and good faith.
ordinary occasion, since such ceremony is the educational institution's way of
announcing to the whole world that the students included in the list of those who Art. 20. Every person who, contrary to law, wilfully or negligently
will be conferred a degree during the baccalaureate ceremony have satisfied all causes damage to another, shall indemnify the latter for the same.
the requirements for such degree. Prior or subsequent to the ceremony, the
school has the obligation to promptly inform the student of any problem
involving the latter's grades and performance and also most importantly, of the Art. 19 was intended to expand the concept of torts by granting adequate legal
procedures for remedying the same. remedy for the untold number of moral wrongs which is impossible for human
foresight to provide specifically in statutory law. 8 In civilized society, men must
be able to assume that others will do them no intended injury — that others will
Petitioner, in belatedly informing respondent of the result of the removal
commit no internal aggressions upon them; that their fellowmen, when they act
examination, particularly at a time when he had already commenced preparing
affirmatively will do so with due care which the ordinary understanding and
for the bar exams, cannot be said to have acted in good faith. Absence of good
moral sense of the community exacts and that those with whom they deal in the
faith must be sufficiently established for a successful prosecution by the general course of society will act in good faith. The ultimate thing in the theory
aggrieved party in a suit for abuse of right under Article 19 of the Civil Code. of liability is justifiable reliance under conditions of civilized society. 9 Schools
Good faith connotes an honest intention to abstain from taking undue advantage
and professors cannot just take students for granted and be indifferent to them,
of another, even though the forms and technicalities of the law, together with the
for without the latter, the former are useless.
absence of all information or belief of facts, would render the transaction
unconscientious.5 It is the school that has access to those information and it is
only the school that can compel its professors to act and comply with its rules, Educational institutions are duty-bound to inform the students of their academic
regulations and policies with respect to the computation and the prompt status and not wait for the latter to inquire from the former. The conscious
submission of grades. Students do not exercise control, much less influence, indifference of a person to the rights or welfare of the person/persons who may
over the way an educational institution should run its affairs, particularly in be affected by his act or omission can support a claim for damages. 10 Want of
disciplining its professors and teachers and ensuring their compliance with the care to the conscious disregard of civil obligations coupled with a conscious
school's rules and orders. Being the party that hired them, it is the school that knowledge of the cause naturally calculated to produce them would make the
exercises general supervision and exclusive control over the professors with erring party liable.11 Petitioner ought to have known that time was of the essence
respect to the submission of reports involving the students' standing. Exclusive in the performance of its obligation to inform respondent of his grade. It cannot
control means that no other person or entity had any control over the feign ignorance that respondent will not prepare himself for the bar exams since
instrumentality which caused the damage or injury.6 that is precisely the immediate concern after graduation of an LL.B. graduate. It
failed to act seasonably. Petitioner cannot just give out its student's grades at any
time because a student has to comply with certain deadlines set by the Supreme
Court on the submission of requirements for taking the bar. Petitioner's liability indeed humiliated by his failure to take the bar, he brought this upon himself by
arose from its failure to promptly inform respondent of the result of an not verifying if he has satisfied all the requirements including his school records,
examination and in misleading the latter into believing that he had satisfied all before preparing himself for the bar examination. Certainly, taking the bar
requirements for the course. Worth quoting is the following disquisition of the examinations does not only entail a mental preparation on the subjects thereof;
respondent court: there are also prerequisites of documentation and submission of requirements
which the prospective examinee must meet.
It is apparent from the testimony of Dean Tiongson that defendant-appellee
University had been informed during the deliberation that the professor in WHEREFORE, the assailed decision of the Court of Appeals is AFFIRMED
Practice Court I gave plaintiff-appellant a failing grade. Yet, defendant-appellee with MODIFICATION. Petitioner is ORDERED to PAY respondent the sum of
still did not inform plaintiff-appellant of his failure to complete the requirements Thirty-five Thousand Four Hundred Seventy Pesos (P35,470.00), with legal
for the degree nor did they remove his name from the tentative list of candidates interest of 6% per annum computed from the date of filing of the complaint until
for graduation. Worse, defendant-appellee university, despite the knowledge that fully paid; the amount of Five Thousand Pesos (P5,000.00) as attorney's fees;
plaintiff-appellant failed in Practice Court I, again included plaintiff-appellant's and the costs of the suit. The award of moral damages is DELEIED. SO
name in the "tentative list of candidates for graduation which was prepared after ORDERED.
the deliberation and which became the basis for the commencement rites
program. Dean Tiongson reasons out that plaintiff-appellant's name was allowed G.R. No. 120639 September 25, 1998
to remain in the tentative list of candidates for graduation in the hope that the
latter would still be able to remedy the situation in the remaining few days BPI EXPRESS CARD CORPORATION, petitioner, vs. COURT OF
before graduation day. Dean Tiongson, however, did not explain how plaintiff APPEALS and RICARDO J.MARASIGAN, respondents
appellant Jader could have done something to complete his deficiency if
defendant-appellee university did not exert any effort to inform plaintiff- The question before this Court is whether private respondent can recover moral
appellant of his failing grade in Practice Court I.12 damages arising from the cancellation of his credit card by petitioner credit card
corporation.
Petitioner cannot pass on its blame to the professors to justify its own negligence
that led to the delayed relay of information to respondent. When one of two The facts of the case are as stated in the decision of the respondent court, 1 to wit:
innocent parties must suffer, he through whose agency the loss occurred must
bear it.13 The modern tendency is to grant indemnity for damages in cases where
The case arose from the dishonor of the credit card of the plaintiff Atty. Ricardo
there is abuse of right, even when the act is not illicit.14 If mere fault or
J. Marasigan by Café Adriatico, a business establishment accredited with the
negligence in one's acts can make him liable for damages for injury caused
defendant-appellate BPI Express Card Corporation (BECC for brevity), on
thereby, with more reason should abuse or bad faith make him liable. A person
December 8, 1989 when the plaintiff entertained some guests thereat.
should be protected only when he acts in the legitimate exercise of his right, that
is, when he acts with prudence and in good faith, but not when he acts with
negligence or abuse.15 The records of this case show that plaintiff, who is a lawyer by profession, was a
complimentary member of BECC from February 1988 to February 1989 and
was issued Credit Card No. 100-012-5534 with a credit limit of P3,000.00 and
However, while petitioner was guilty of negligence and thus liable to respondent
with a monthly billing every 27th of the month (Exh. N), subject to the terms
for the latter's actual damages, we hold that respondent should not have been
and conditions stipulated in the contract (Exh. 1-b). His membership was
awarded moral damages. We do not agree with the Court of Appeals' findings
renewed for another year or until February 1990 and the credit limit was
that respondent suffered shock, trauma and pain when he was informed that he
increased to P5,000.00 (Exh. A). The plaintiffs oftentimes exceeded his credit
could not graduate and will not be allowed to take the bar examinations. At the
limits (Exhs. I, I-1 to I-12) but this was never taken against him by the defendant
very least, it behooved on respondent to verify for himself whether he has
and even his mode of paying his monthly bills in check was tolerated. Their
completed all necessary requirements to be eligible for the bar examinations. As
contractual relations went on smoothly until his statement of account for
a senior law student, respondent should have been responsible enough to ensure
October 1989 amounting to P8,987.84 was not paid in due time. The plaintiff
that all his affairs, specifically those pertaining to his academic achievement, are
admitted having inadvertently failed to pay his account for the said month
in order. Given these considerations, we fail to see how respondent could have
because he was in Quezon province attending to some professional and personal
suffered untold embarrassment in attending the graduation rites, enrolling in the
commitments. He was informed by his secretary that defendant was demanding
bar review classes and not being able to take the bar exams. If respondent was
immediate payment of his outstanding account, was requiring him to issue a him to pay in full his overdue account, including stipulated fees and charges,
check for P15,000.00 which would include his future bills, and was threatening within 5 days from receipt thereof or face court action and also to replace the
to suspend his credit card. Plaintiff issued Far East Bank and Trust Co. Check postdated check with cash within the same period or face criminal suit for
No. 494675 in the amount of P15,000.00, postdated December 15, 1989 which violation of Bouncing Check Law (Exh. G/Exh. 13). The plaintiff in a reply
was received on November 23, 1989 by Tess Lorenzo, an employee of the letter dated April 5, 1990 (Exh. H), demanded defendant's compliance with his
defendant (Exhs. J and J-1), who in turn gave the said check to Jeng Angeles, a request in his first letter dated March 12, 1990 within three (3) days from receipt,
co-employee who handles the account of the plaintiff. The check remained in the otherwise the plaintiff will file a case against them, . . . . 2
custody of Jeng Angeles. Mr. Roberto Maniquiz, head of the collection
department of defendant was formally informed of the postdated check about a Thus, on May 7, 1990 private respondent filed a complaint for damages against
week later. On November 28, 2989, defendant served plaintiff a letter by petitioner before the Regional Trial Court of Makati, Branch 150, docketed as
ordinary mail informing him of the temporary suspension of the privileges of his Civil Case No. 90-1174.
credit card and the inclusion of his account number in their Caution List. He was
also told to refrain from further use of his credit card to avoid any
After trial the trial court ruled for private respondent, finding that herein
inconvenience/embarrassment and that unless he settles his outstanding account petitioner abused its right in contravention of Article 19 of the Civil Code. 3 The
with the defendant within 5 days from receipt of the letter, his membership will dispositive portion of the decision reads:
be permanently cancelled (Exh. 3). There is no showing that the plaintiff
received this letter before December 8, 1989. Confidential that he had settled his
account with the issuance of the postdated check, plaintiff invited some guests Wherefore, judgment is hereby rendered ordering the defendant to pay plaintiff
on December 8, 1989 and entertained them at Café Adriatico. When he the following:
presented his credit card to Café Adriatico for the bill amounting to P735.32,
said card was dishonored. One of his guests, Mary Ellen Ringler, paid the bill by 1. P 100,000.00 as moral damages;
using her own credit card a Unibankard (Exhs. M, M-1 and M-2). 2. P 50,000.00 as exemplary damages; and
3. P 20,000.00 by way of attorney's fees.
In a letter addressed to the defendant dated December 12, 1989, plaintiff
requested that he be sent the exact billing due him as of December 15, 1989, to On the other hand, plaintiff is ordered to pay defendant its outstanding
withhold the deposit of his postdated check and that said check be returned to obligation in the amount of P14,439.41, amount due as of December 15, 1989. 4
him because he had already instructed his bank to stop the payment thereof as
the defendant violated their agreement that the plaintiff issue the check to the
defendant to cover his account amounting to only P8,987.84 on the condition The trial court's ruling was based on its findings and conclusions, to wit:
that the defendant will not suspend the effectivity of the card (Exh. D). A letter
dated December 16, 1989 was sent by the plaintiff to the manager of FEBTC, There is no question that plaintiff had been in default in the payment of his
Ramada Branch, Manila requesting the bank to stop the payment of the check billings for more than two months, prompting defendant to call him and
(Exhs. E, E-1). No reply was received by plaintiff from the defendant to his reminded him of his obligation. Unable to personally talk with him, this Court is
letter dated December 12, 1989. Plaintiff sent defendant another letter dated convinced that somehow one or another employee of defendant called him up
March 12, 1990 reminding the latter that he had long rescinded and cancelled more that once.
whatever arrangement he entered into with defendant and requesting for his
correct billing, less the improper charges and penalties, and for an explanation However, while it is true that as indicated in the terms and conditions of the
within five (5) days from receipt thereof why his card was dishonored on application for BPI credit card upon failure of the cardholder to pay his
December 8, 1989 despite assurance to the contrary by defendant's personnel-in- outstanding obligation for more that thirty (30) days, the defendant can
charge, otherwise the necessary court action shall be filed to hold defendant automatically suspend or cancel the credit card, that reserved right should not
responsible for the humiliation and embarrassment suffered by him (Exh. F). have been abused as it was in fact abused, in plaintiff's case. What is more
Plaintiff alleged further that after a few days, a certain Atty. Albano, peculiar here is that there have been admitted communications between plaintiff
representing himself to be working with the office of Atty. Lopez, called him and defendant prior to the suspension or cancellation of plaintiff's credit card
inquiring as to how the matter can be threshed out extrajudicially but the latter and his inclusion in the cautions list. However, nowhere in any of these
said that such is a serious matter cannot be discussed over the phone. The communications was there ever a hint given to plaintiff that his card had already
defendant served its final demand to the plaintiff dated March 21, 1990 requiring been suspended or cancelled. In fact, the Court observed that while defendant
was trying its best to persuade plaintiff to update its account and pay its 5. That despite the many instances that defendant could have informed plaintiff
obligation, it had already taken steps to suspend/cancel plaintiff's card and over the phone of the cancellation or suspension of his credit card, it did not do
include him in the caution list. While the Court admires defendant's diplomacy so, which could have prevented the incident of December 8, 1989, the notice
in dealing with its clients, it cannot help but frown upon the backhanded way allegedly sent thru ordinary mail is not only unreliable but takes a long time.
defendant deal with plaintiff's case. For despite Tess Lorenzo's denial, there is Such action as suspension of credit card must be immediately relayed to the
reason to believe that plaintiff was indeed assured by defendant of the continued person affected so as to avoid embarrassing situations.
honoring of his credit card so long as he pays his obligation of P15,000.00.
Worst, upon receipt of the postdated check, defendant kept the same until a few 6. And that the postdated check was deposited on December 20, 1989.
days before it became due and said check was presented to the head of the
collection department, Mr. Maniquiz, to take steps thereon, resulting to the
In view of the foregoing observations, it is needless to say that there was indeed
embarrassing situations plaintiff found himself in on December 8, 1989.
an arrangement between plaintiff and the defendant, as can be inferred from the
Moreover, Mr. Maniquiz himself admitted that his request for plaintiff to replace
acts of the defendant's employees, that the subject credit card is still good and
the check with cash was not because it was a postdated check but merely to tally
could still be used by the plaintiff as it would be honored by the duly accredited
the payment with the account due. establishment of defendant.

Likewise, the Court is not persuaded by the sweeping denials made by Tess
Not satisfied with the Regional Trial Court's decision, petitioner appealed to the
Lorenzo and her claim that her only participation was to receive the subject
Court of Appeals, which in a decision promulgated on March 9, 1995 ruled in its
check. Her immediate superior, Mr. Maniquiz testified that he had instructed
dispositive portion.
Lorenzo to communicate with plaintiff once or twice to request the latter to
replace the questioned check with cash, thus giving support to the testimony of
plaintiff's witness, Dolores Quizon, that it was one Tess Lorenzo whom she had WHEREFORE, premises considered the decision appealed from is hereby
talked over the phone regarding plaintiff's account and plaintiff's own statement AFFIRMED with the MODIFICATION that the defendant-appellant shall pay
that it was this woman who assured him that his card has not yet been and will the plaintiff-appellee the following: P50,000.00 as moral damages: P25,000.00
not be cancelled/suspended if he would pay defendant the sum of P15,000.00. as exemplary damages; and P10,000.00 by way of attorney's fees. SO
ORDERED. 6
Now, on the issue of whether or not upon receipt of the subject check defendant
had agreed that the card shall remain effective the Court takes note of the Hence, the present petition on the following assignment of errors:
following:
I
1. An employee of defendant corporation unconditionally accepted the subject
check upon its delivery despite its being a postdated one; and the amount did not THE LOWER COURT ERRED IN DECLARING THAT THERE WAS
tally with plaintiff's obligation; INDEED AN AGREEMENT OR ARRANGEMENT ENTERED INTO
BETWEEN THE PARTIES WHEREIN THE DEFENDANT REQUIRED THE
2. Defendant did not deny nor controvert plaintiff's claim that all of his PLAINTIFF TO ISSUE A POSTDATED CHECK IN ITS FAVOR IN THE
payments were made in checks; AMOUNT OF P15,000.00 AS PAYMENT FOR HIS OVERDUE ACCOUNTS,
WITH THE CONDITION THAT THE PLAINTIFF'S CREDIT CARD WILL
NOT BE SUSPENDED OR CANCELLED.
3. Defendant's main witness, Mr. Maniquiz, categorically stated that the request
for plaintiff to replace his postdated check with a cash was merely for the
purpose of tallying plaintiff's outstanding obligation with his payment and not to II
question the postdated check;
THE LOWER COURT ERRED IN HOLDING DEFENDANT LIABLE FOR
4. That the card was suspended almost a week after receipt of the postdated DAMAGES AND ATTORNEY'S FEES ARISING OUT FROM THE
check; DISHONOR OF THE PLAINTIFF'S CREDIT CARD. 7

We find the petition meritorious.


The first issue to be resolved is whether petitioner had the right to suspend the BECC's right of considering Cardholder's obligation unpaid; cable cost for
credit card of the private respondent. demanding payment or advising cancellation of membership shall also be for
Cardholder's account; and (c) a final fee equivalent to 25% of the unpaid balance,
Under the terms and conditions of the credit card, signed by the private exclusive of litigation expenses and judicial costs, if the payment of the account
respondent, any card with outstanding balances after thirty (30) days from is enforced through court action. 8
original billing/statement shall automatically be suspended, thus:
The aforequoted provision of the card cannot be any clearer. By his own
PAYMENT OF CHARGES — BECC shall furnish the Cardholder a monthly admission private respondent no payment within thirty days for his
statement of account made through the use of the CARD and the Cardholder billing/statement dated 27 September 1989. Neither did he make payment for his
agrees that all charges made through the use of the CARD shall be paid by the original billing/statement dated 27 October 1989. Consequently as early as 28
Cardholder on or before the last day for payment, which is twenty (20) days October 1989 thirty days from the non-payment of his billing dated 27
from the date of the said statement of account; and such payment due date may September 1989, petitioner corporation could automatically suspend his credit
be changed to an earlier date if the Cardholder's account is considered overdue card.
and/or with balances in excess of the approved credit limit; or to such other date
as may be deemed proper by the CARD issuer with notice to the Cardholder on The next issue is whether prior to the suspension of private respondent's credit
the same monthly statement of account. If the last day for payment falls on a card on 28 November 1989 the parties entered into an agreement whereby the
Saturday, Sunday or Holiday, the last day for payment automatically becomes card could still be used and would be duly honored by duly accredited
the last working day prior to the said payment date. However, notwithstanding establishments.
the absence or lack of proof of service of the statement of charges to the
Cardholder, the latter shall pay any or all charges made through the use of the We agree with the findings of the respondent court, that there was an
CARD within thirty (30) days from the date or dates thereof. Failure of arrangement between the parties, wherein the petitioner required the private
Cardholder to pay any and all charges made through the CARD within the respondent to issue a check worth P15,000.00 as payment for the latter's billings.
payment period as stated in the statement of charges or with in thirty (30) days However we find that the private respondent was not able to comply with this
from actual date or dates whichever occur earlier, shall render him in default obligation.
without the necessity of demand from BECC, which the Cardholder expressly
waives. These charges or balance thereof remaining unpaid after the payment
As the testimony of private respondent himself bears out, the agreement was for
due date indicated on the monthly statement of account shall bear interest of 3%
the immediate payment of the outstanding account:
per month and an additional penalty fee equivalent to another 3% of the amount
due for every month or a fraction of a month's delay. PROVIDED, that if there
Q In said statement of account that you are supposed to pay the P8,974.84 the charge of
occurs any changes on the prevailing market rates BECC shall have the option to
interest and penalties, did you note that?
adjust the rate of interest and/or penalty fee due on the outstanding obligation A Yes, sir I noted the date.
with prior notice to the Cardholder. Q When?
A When I returned from the Quezon province, sir
xxx xxx xxx Q When?
A I think November 22, sir.
Q So that before you used again the credit card you were not able to pay immediately this
Any CARD with outstanding balances unpaid after thirty (30) days from original P8,987.84 in cash?
billing/statement date shall automatically be suspended and those with accounts A I paid P15,000.00, sir.
unpaid after sixty (60) days from said original billing/statement date shall Q My question Mr. witness is, did you pay this P8,987.84 in charge of interest and
automatically be cancelled without prejudice to BECC's right to suspend or penalties immediately in cash?
cancel any CARD any time and for whatever reason. In case of default in his A In cash no, but in check, sir.
obligation as provided for in the preceding paragraph, Cardholder shall Q You said that you noted the word "immediately" in bold letters in your statement of
surrender his CARD to BECC and shall in addition to the interest and penalty accounts, why did not pay immediately?
charges aforementioned, pay the following liquidated damages and/or fees (a) a A Because I received that late, sir.
Q Yes, on November 22 when you received from the secretary of the defendant telling
collection fee of 25% of the amount due if the account is referred to a collection
you to pay the principal amount of P8,987.84, why did you not pay?
agency or attorney; (b) a service fee of P100 for every dishonored check issued
by the Cardholder's in payment of his account, without prejudice; however to
A There was a communication between me and the defendant, I was required to pay setting his outstanding account. As such, petitioner cannot be said to have
P8,000.00 but I paid in check for P15,000.00, sir. capriciously and arbitrarily canceled the private respondent's credit card.
Q Do you have any evidence to show that the defendant required you to pay in check for
P15,000.00?
A Yes, sir. We do not dispute the findings of the lower court that private respondent
Q Where is it? suffered damages as a result of the cancellation of his credit card. However,
A It was telecommunication, sir. there is a material distinction between damages and injury. Injury is the illegal
Q So there is no written communication between you and the defendant? invasion of a legal right; damage is the loss, hurt or harm which results from the
A There was none, sir. injury; and damages are the recompense or compensation awarded for the
Q There is no written agreement which says that P8,987.84 should be paid for P15,000.00 damage suffered. Thus, there can be damage without injury in those instances in
in check, there is none? which the loss or harm was not the results of a violation of a legal duty. In such
A Yes, no written agreement, sir. cases, the consequences must be borne by the injured person alone, the law
Q And you as a lawyer you know that a check is not considered as cash specially when it
is postdated sent to the defendant?
affords no remedy for damages resulting from an act which does not amount to a
A That is correct, sir. legal injury or wrong. These situations are often called damnum absque
injuria. 12
Clearly the purpose of the arrangement between the parties on November 22,
1989, was for the immediate payment of the private respondent's outstanding In other words, in order that the plaintiff may maintain an action for the injuries
account, in order that his credit card would not be suspended. of which he complaints, he must establish that such injuries resulted from a
breach of duty which the defendant owed to the plaintiff a concurrence of injury
to the plaintiff and legal responsibility by the person causing it. The underlying
As agreed upon by the parties, on the following day, private respondent did issue
basis for the award of tort damages is the premise that an individual was injured
a check for P15,000.00. However, the check was postdated 15 December 1989.
in contemplation of law. Thus, there must first be a breach of some duty and the
Settled is the doctrine that a check is only a substitute for money and not money,
imposition of liability for that breach before damages may be awarded; 13 and
the delivery of such an instrument does not, by itself operate as payment. 9 This
the breach of such duty should be the proximate cause of the injury.
is especially true in the case of a postdated check.
We therefore disagree with the ruling of the respondent court that the dishonor
Thus, the issuance by the private respondent of the postdated check was not
of the credit card of the private respondent by Café Adriatico is attributable to
effective payment. It did not comply with his obligation under the arrangement
petitioner for its willful or gross neglect to inform the private respondent of the
with Miss Lorenzo. Petitioner corporation was therefore justified in suspending
suspension of his credit card, the unfortunate consequence of which brought
his credit card.
social humiliation and embarrassment to the private respondent. 14
Finally, we find no legal and factual basis for private respondent's assertion that
It was petitioner's failure to settle his obligation which caused the suspension of
in canceling the credit card of the private respondent, petitioner abused its right
his credit card and subsequent dishonor at Café Adriatico. He can not now pass
under the terms and conditions of the contract.
the blame to the petitioner for not notifying him of the suspension of his card.
As quoted earlier, the application contained the stipulation that the petitioner
To find the existence of an abuse of right Article 19 the following elements must could automatically suspend a card whose billing has not been paid for more
be present (1) There is a legal right or duty; (2) which is exercised in bad faith; than thirty days. Nowhere is it stated in the terms and conditions of the
(3) for the sole intent of prejudicing or injuring another. 10 application that there is a need of notice before suspension may be affected as
private respondent claims. 15
Time and again this Court has held that good faith is presumed and the burden of
proving bad faith is on the party alleging it. 11 This private respondent failed to This notwithstanding on November 28, 1989, the day of the suspension of
do. In fact, the action of the petitioner belies the existence of bad faith. As early private respondent's card, petitioner sent a letter by ordinary mail notifying
as 28 October 1989, petitioner could have suspended private respondent's card private respondent that his card had been temporarily suspended. Under the
outright. Instead, petitioner allowed private respondent to use his card for Rules on Evidence, there is a disputable presumption that letters duly directed
several weeks. Petitioner had even notified private respondent of the impending and mailed were received on the regular course of mail. 16 Aside from the
suspension of his credit card and made special accommodations for him for private respondent's bare denial he failed to present evidence to rebut the
presumption that he received said notice. In fact upon cross examination private Secretary of National Defense, Col. Nicolas Jimenez (Engineer), the Finance
respondent admitted that he did receive the letter notifying him of the Officer, and the Auditor of the Dept. of National Defense, Pablo D. Panlilio and
cancellation: Allied Technologists, Inc. Civil Case No. 23778 was dismissed by the CFI on
October 12, 1954; and the dismissal was affirmed by this Court on July 7, 1955,
Q Now you were saying that there was a first letter sent to you by the defendant? in G.R. No. L-8638. Civil Case No. 26601 was also dismissed on September 13,
A Your letter, sir. 1955. On appeal, this Court reversed the order of dismissal, under the
Q Was that the first letter that you received? impression that the real controversy was confined merely between defendant
A Yes, sir. Panlilio and plaintiffs Ruiz and Herrera over the 15% of the contract price,
Q It is that there was a communication first between you and the defendant? which was retained by the Department of National Defense. The retention of the
A There was none, sir. I received a cancellation notice but that was after 15% of the contract price in the sum of P34,740.00 was made to answer for any
November 27. 17 claim or lien that might arise, in the course of the construction. The last case,
however, was remanded to the court of origin, for further proceedings. Panlilio
and the corporation filed their amended answers, stating that the amount retained
As it was private respondent's own negligence which was the proximate cause of
his embarrassing and humiliating experience, we find the award of damages by by the Department of National Defense was already paid to defendant
the respondent court clearly unjustified. We take note of the fact that private corporation, as sought for by the plaintiffs in their complaint. In view of this
development, the trial court invited the parties to a conference, in which the
respondent has not yet paid his outstanding account with petitioner.
plaintiffs indicated their conformity, to the dismissal of the complaint with
respect to the retention of the 15% of the contract price; but insisted upon the
IN VIEW OF THE FOREGOING, the decision of the Court of Appeals ordering hearing of the second question, which sought the declaration and recognition of
petitioner to pay private respondent P100,000.00 as moral damages P50,000.00 plaintiffs Ruiz and Herrera, as two of the three architects of the hospital. The
as exemplary damages and P20,000.00 as attorney's fees, is SET ASIDE. Private trial court, nevertheless, dismissed the complaint, for being already academic
respondent is DIRECTED to pay his outstanding obligation with the petitioner and moot. Hence, this appeal by plaintiffs-appellants, who alleged in their lone
in the amount of P14,439.41. SO ORDERED. assignment of error that "the lower court grievously erred in ordering the
dismissal of the case, with costs against the plaintiffs".
G.R. No. L-15526, December 28, 1963
ENRIQUE J. L. RUIZ and JOSE V. HERRERA, in their behalf and as Plaintiffs-appellants contend that the only ground relied upon by the lower court
minority stockholders of the Allied Technologists, Inc., plaintiffs- to dismiss the case without any trial is the allegation contained in pars. 4 and (e)
appellants, of the answers of the appellees Panlilio and Allied Technologists, Inc.,
respectively; that the amount retained by the Department of National Defense
vs. THE SECRETARY OF NATIONAL DEFENSE, COL. NICOLAS JIMENEZ,
had already been paid; that except for this bare allegation of the appellees, no
Head of the Engineer Group, Office of the Secretary of National evidence was adduced to prove the truth of the same; that even assuming, for the
Defense, THE FINANCE OFFICER of the Department of National sake of argument, that the same is true, nevertheless the first part of the first
Defense, THE AUDITOR of the Dept. of National Defense, PABLO D. cause of action still remains, for which they had insisted upon a hearing in order
PANLILIO and ALLIED TECHNOLOGISTS, INC.,defendants-appellees. to establish their right to be recognized as two of the three architects of the
hospital; that because the pleadings do not show any ground which might legally
This is an appeal by plaintiffs Enrique J. L. Ruiz and Jose V. Herrera from an justify the action taken by the lower court, the latter should not have ordered the
Order of the Court of First Instance of Manila, in Civil Case No. 26601, dated dismissal of the entire case but should have ordered only the striking out of the
February 25, 1959, dismissing plaintiffs' complaint. moot portion of appellants' first cause of action, citing Pacal v. Ramos, 81 Phil.
30, 33; 27 C.J.S. 209-210; Bush v. Murray, 205 N.Y.S. 21, 26, 209 App. Div.
563; Bearden v. Longino. 190 S.E. 12, 183 Ga. 819. Appellants further argue in
On September 11, 1950, a contract was executed between the defendant Allied their brief that they base their cause of action on article 21, New Civil Code.
Technologists, Inc. (corporation, for short), and the Republic of the Philippines,
for the construction of the Veterans Memorial Hospital. Ruiz and Herrera were
stockholders and officers of the corporation. The construction of the hospital The appeal has no merit. The order appealed from, states —
was terminated in 1955. On August 20, 1954, and June 20, 1955, Civil Cases
Nos. 23778 and 26601, respectively, were filed by same plaintiffs herein, Considering the manifestation of counsel for plaintiffs that the latter would insist
making as parties-defendants in both cases, the same defendants herein, the on the hearing of the above-entitled case for the purpose of establishing their
right to be recognized as the architects of the Veterans Hospital together with even without first ruling on the special defenses of appellees Panlilio and the
defendant Pablo D. Panlilio, and it appearing that plaintiffs' Amended Complaint corporation.
with Injunction prays, among others, "That this Honorable Court order
defendants Secretary of National Defense, Col. Nicolas Jimenez, and the Moreover, by discarding the Secretary and other officials of the Department of
Finance Officer and Auditor of the Department of National Defense to pay the National Defense, as parties-defendants, appellants could not expect the trial
Allied Technologists, Inc., the balance unpaid by virtue of the contract executed court to order them to recognize and declare appellants as co-architects in the
on September 11, 1950 (Annex "C" hereof) for services rendered under Title I construction of the hospital. And this must be so, because the construction
and to be rendered under Title II of said contract; that paragraph 4 of defendant agreement expressly provides that the architect being contracted by the
Pablo Panlilio's Amended Answer to said complaint alleges "That whatever Government was appellee Pablo Panlilio. The said agreement states that the
amounts were retained by the Dept. of National Defense on the contract price, same was entered into by the government, party of the first part and "Allied
which retention was authorized by the contract, was paid by the Dept. of Technologists, Inc. . . . and Mr. Pablo D. Panlilio, architect, hereinafter called
National Defense to the Allied Technologists Inc. as sought by the plaintiffs; the party of the second part" and "The Allied Technologists, Inc. for rendering
that paragraph (e) of the ANSWER TO THE AMENDED COMPLAINT of engineering services and Mr. Pablo D. Panlilio, architect, for rendering
defendant Allied Technologists, Inc., also alleges "That whatever amounts were architectural services". And the contract was signed for the Government by
retained by the Department of National Defense, per the stipulations contained "Ramon Magsaysay, Secretary of National Defense (party of the first part," and
in the contract, have already been paid by the Allied Technologists, Inc. and, "Allied Technologists, Inc., by Enrique J. L. Ruiz, President, Contractor, Pablo
therefore, the present action seeking to compel the aforementioned Department D. Panlilio, Architect".
of National Defense to pay to defendant Allied Technologists, Inc. the amounts
retained by the Department of National Defense is academic, groundless,
Appellants maintain that their claim for recognition is divisible and separable
unfounded and malicious"; that the said allegations of the separate answers of from their allegations regarding the non-payment by the government of a portion
defendants Pablo Panlilio and Allied Technologists, Inc., are not and can not be of the architectural fees; thereby concluding that what the lower court should
denied by plaintiffs, and that it is this Court's understanding that defendant has
have done, should have been merely to order the striking out of the moot portion
no objection to the dismissal of this case — it is ordered that this case be, as it is
of appellants' cause of action, and should have proceeded with hearing their
hereby DISMISSED, with costs against plaintiffs.
claim for recognition. But the allegations in pars. 18 and 19 of the amended
complaint, show otherwise. There is an indivisible and single cause of action
A cursory reading of pars. 18 and 19 of the amended complaint with injunction which is primarily to prevent payment exclusively to defendant Panlilio of the
and prayers (1) and (2) thereof, reveals that appellants' first cause of action is amount of P34,740.00, which said appellants contend should be paid to appellee
composed of two parts, as follows: Allied Technologists, Inc.; the matter recognizing them together with Pablo
Panlilio as architects of the hospital, being merely incidental thereto. The case
(a) A judicial declaration or recognition that appellants Ruiz and Herrera, of Pacal v. Ramos, 81 Phil. 30, cited by appellants is not applicable. In this case,
together with appellee Panlilio, were the architects of the Veterans Hospital; and the grounds for quo warranto are separable from the grounds for election
irregularities which are distinct and separate causes of action, entitling the
(b) An injunction restraining the appellee government officials paying their co- petitioner to separate and unrelated reliefs. These two grounds were alleged
appellee Panlilio the sum retained by the former, as per stipulation contained in under separate paragraphs and they were two independent actions improperly
the contract for the construction of the hospital because "they will not only be joined in one proceeding. In the case at bar, in one paragraph (par. 19 of the
deprived of the monetary value of the services legally due them, but that their amended complaint), as first cause of action, the claim for recognition is
professional prestige and standing will be seriously impaired".lawphil.net inseparably linked with their allegations regarding alleged threatened payment
of P34,740.00 to Panlilio alone, because "they will not only be deprived of the
monetary value of the services legally due them, but that their professional
As appellants admitted, they no longer consider the Secretary and other officials
prestige and standing will be seriously impaired". When the very defendant
of the Department of National Defense, as parties-defendants in the case, said
officials can no longer be compelled to recognize the appellants, Ruiz and Allied Technologists, Inc. itself asserted in its answer the amended complaint,
Herrera, as co-architects with appellee Panlilio of the Veterans Hospital. And, as that the amount was paid to it, an assertion which was not at all denied,
plaintiffs-appellants' cause of action under said par. 19 dissipated entirely.
the amount retained by the Department on the contract price, which retention
was authorized by the contract, was, as sought by the appellants, already paid to
the Allied Technologists, Inc., there is nothing more for the trial court to decide, There is a veiled insinuation that appellants, thesis would fall under the
provisions of the Rules on declaratory relief, because appellants wanted merely
a declaration of their rights in a contract in which they were interested. The trial Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of
court, however, was correct in refusing to make such declaration, because it was love, decided to get married and set September 4, 1954 as the big day. On
not necessary and proper under the circumstances (sec. 6, Rule 66). Appellants September 2, 1954 Velez left this note for his bride-to-be:
were not parties to the construction agreement. The sole object the appeal is only
to secure for them a recognition, that they were allegedly the co-architects of Dear Bet —
Panlilio, in the construction of the hospital, so as to enhance their professional
prestige and not to impair their standing. If this is the goal of appellants, a
Will have to postpone wedding — My mother opposes it. Am leaving on the
judicial declaration to the effect would seem unnecessary. Let us ponder over the Convair today.
thought that a brilliant professional enjoys the respect and esteem of his
fellowmen, even without any court declaration of such fact, and that an
incompetent one may summon all the tribunals in the world, to proclaim his Please do not ask too many people about the reason why — That would only
genius in vain. create a scandal.

But appellants invoke Article 21 of the Civil Code, which states — Paquing

Any person who willfully causes loss or injury to another in a manner But the next day, September 3, he sent her the following telegram:
that is contrary to morals, good customs or public policy shall
compensate the latter for the damages. NOTHING CHANGED REST ASSURED RETURNING VERY SOON
APOLOGIZE MAMA PAPA LOVE .
contending that the word "injury" in the said article, refers not only to any
indeterminate right or property, but also to honor or credit (I Tolentino Civil PAKING
Code, p. 67). It may be added, however, that this article also envisions a
situation where a person has a legal right, and such right is violated by another Thereafter Velez did not appear nor was he heard from again.
in a manner contrary to morals, good customs or public policy; it presupposes
losses or injuries, material or otherwise, which one may suffer as a result of said Sued by Beatriz for damages, Velez filed no answer and was declared in default.
violation. The pleadings do not show that damages were ever asked or alleged, Plaintiff adduced evidence before the clerk of court as commissioner, and on
in connection with this case, predicated upon the article aforecited. And under April 29, 1955, judgment was rendered ordering defendant to pay plaintiff
the facts and circumstances obtaining in this case, one cannot plausibly sustain P2,000.00 as actual damages; P25,000.00 as moral and exemplary damages;
the contention that the failure or refusal to extend the recognition was an act P2,500.00 as attorney's fees; and the costs.
contrary to morals, good customs or public policy.
On June 21, 1955 defendant filed a "petition for relief from orders, judgment and
IN VIEW HEREOF, the order appealed from is affirmed, with costs against proceedings and motion for new trial and reconsideration." Plaintiff moved to
plaintiffs-appellants. strike it cut. But the court, on August 2, 1955, ordered the parties and their
attorneys to appear before it on August 23, 1955 "to explore at this stage of the
G.R. No. L-20089, December 26, 1964 proceedings the possibility of arriving at an amicable settlement." It added that
should any of them fail to appear "the petition for relief and the opposition
BEATRIZ P. WASSMER, plaintiff-appellee, vs. FRANCISCO X. thereto will be deemed submitted for resolution."
VELEZ, defendant-appellant.
On August 23, 1955 defendant failed to appear before court. Instead, on the
The facts that culminated in this case started with dreams and hopes, followed following day his counsel filed a motion to defer for two weeks the resolution on
by appropriate planning and serious endeavors, but terminated in frustration and, defendants petition for relief. The counsel stated that he would confer with
what is worse, complete public humiliation. defendant in Cagayan de Oro City — the latter's residence — on the possibility
of an amicable element. The court granted two weeks counted from August 25,
1955.
Plaintiff manifested on June 15, 1956 that the two weeks given by the court had It must not be overlooked, however, that the extent to which acts not contrary to
expired on September 8, 1955 but that defendant and his counsel had failed to law may be perpetrated with impunity, is not limitless for Article 21 of said
appear. Code provides that "any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
Another chance for amicable settlement was given by the court in its order of compensate the latter for the damage."
July 6, 1956 calling the parties and their attorneys to appear on July 13, 1956.
This time. however, defendant's counsel informed the court that chances of The record reveals that on August 23, 1954 plaintiff and defendant applied for a
settling the case amicably were nil. license to contract marriage, which was subsequently issued (Exhs. A, A-1).
Their wedding was set for September 4, 1954. Invitations were printed and
On July 20, 1956 the court issued an order denying defendant's aforesaid petition. distributed to relatives, friends and acquaintances (Tsn., 5; Exh. C). The bride-
Defendant has appealed to this Court. In his petition of June 21, 1955 in the to-be's trousseau, party drsrses and other apparel for the important occasion were
court a quo defendant alleged excusable negligence as ground to set aside the purchased (Tsn., 7-8). Dresses for the maid of honor and the flower girl were
judgment by default. Specifically, it was stated that defendant filed no answer in prepared. A matrimonial bed, with accessories, was bought. Bridal showers were
the belief that an amicable settlement was being negotiated. given and gifts received (Tsn., 6; Exh. E). And then, with but two days before
the wedding, defendant, who was then 28 years old,: simply left a note for
plaintiff stating: "Will have to postpone wedding — My mother opposes it ... "
A petition for relief from judgment on grounds of fraud, accident, mistake or
He enplaned to his home city in Mindanao, and the next day, the day before the
excusable negligence, must be duly supported by an affidavit of merits stating
wedding, he wired plaintiff: "Nothing changed rest assured returning soon." But
facts constituting a valid defense. (Sec. 3, Rule 38, Rules of Court.) Defendant's
affidavit of merits attached to his petition of June 21, 1955 stated: "That he has a he never returned and was never heard from again.
good and valid defense against plaintiff's cause of action, his failure to marry the
plaintiff as scheduled having been due to fortuitous event and/or circumstances Surely this is not a case of mere breach of promise to marry. As stated, mere
beyond his control." An affidavit of merits like this stating mere conclusions or breach of promise to marry is not an actionable wrong. But to formally set a
opinions instead of facts is not valid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, wedding and go through all the above-described preparation and publicity, only
1951; Vaswani vs. P. Tarrachand Bros., L-15800, December 29, 1960.) to walk out of it when the matrimony is about to be solemnized, is quite
different. This is palpably and unjustifiably contrary to good customs for which
defendant must be held answerable in damages in accordance with Article 21
Defendant, however, would contend that the affidavit of merits was in fact
aforesaid.
unnecessary, or a mere surplusage, because the judgment sought to be set aside
was null and void, it having been based on evidence adduced before the clerk of
court. In Province of Pangasinan vs. Palisoc, L-16519, October 30, 1962, this Defendant urges in his afore-stated petition that the damages awarded were
Court pointed out that the procedure of designating the clerk of court as excessive. No question is raised as to the award of actual damages. What
commissioner to receive evidence is sanctioned by Rule 34 (now Rule 33) of the defendant would really assert hereunder is that the award of moral and
Rules of Court. Now as to defendant's consent to said procedure, the same did exemplary damages, in the amount of P25,000.00, should be totally eliminated.
not have to be obtained for he was declared in default and thus had no standing
in court (Velez vs. Ramas, 40 Phil. 787; Alano vs. Court of First Instance, L- Per express provision of Article 2219 (10) of the New Civil Code, moral
14557, October 30, 1959). damages are recoverable in the cases mentioned in Article 21 of said Code. As
to exemplary damages, defendant contends that the same could not be adjudged
In support of his "motion for new trial and reconsideration," defendant asserts against him because under Article 2232 of the New Civil Code the condition
that the judgment is contrary to law. The reason given is that "there is no precedent is that "the defendant acted in a wanton, fraudulent, reckless,
provision of the Civil Code authorizing" an action for breach of promise to oppressive, or malevolent manner." The argument is devoid of merit as under
marry. Indeed, our ruling in Hermosisima vs. Court of Appeals (L-14628, Sept. the above-narrated circumstances of this case defendant clearly acted in a
30, 1960), as reiterated in Estopa vs. Biansay (L-14733, Sept. 30, 1960), is that "wanton ... , reckless [and] oppressive manner." This Court's opinion, however,
"mere breach of a promise to marry" is not an actionable wrong. We pointed out is that considering the particular circumstances of this case, P15,000.00 as moral
that Congress deliberately eliminated from the draft of the new Civil Code the and exemplary damages is deemed to be a reasonable award.
provisions that would have it so.
PREMISES CONSIDERED, with the above-indicated modification, the lower The Court of Appeals, therefore, entered judgment setting aside the dismissal
court's judgment is hereby affirmed, with costs. and directing the court of origin to proceed with the case.

G.R. No. L-18630,December 17, 1966 Defendant, in turn, appealed to this Court, pleading that actions for breach of a
promise to marry are not permissible in this jurisdiction, and invoking the
APOLONIO TANJANCO, petitioner, vs. HON. COURT OF APPEALS and
rulings of this Court in Estopa vs. Piansay, L-14733, September 30,
ARACELI SANTOS, respondents. 1960; Hermosisima vs. Court of Appeals, L-14628, January 29, 1962; and De
Jesus vs. SyQuia, 58 Phil. 886.
Appeal from a decision of the Court of Appeals (in its Case No. 27210-R)
revoking an order of the Court of First Instance of Rizal (in Civil Case No. Q- We find this appeal meritorious.
4797) dismissing appellant's action for support and damages.
In holding that the complaint stated a cause of action for damages, under Article
The essential allegations of the complaint are to the effect that, from December, 21 above mentioned, the Court of Appeals relied upon and quoted from the
1957, the defendant (appellee herein), Apolonio Tanjanco, courted the plaintiff, memorandum submitted by the Code Commission to the Legislature in 1949 to
Araceli Santos, both being of adult age; that "defendant expressed and professed support the original draft of the Civil Code. Referring to Article 23 of the draft
his undying love and affection for plaintiff who also in due time reciprocated the (now Article 21 of the Code), the Commission stated:
tender feelings"; that in consideration of defendant's promise of marriage
plaintiff consented and acceded to defendant's pleas for carnal knowledge; that
But the Code Commission has gone farther than the sphere of wrongs defined or
regularly until December 1959, through his protestations of love and promises of
determined by positive law. Fully sensible that there are countless gaps in the
marriage, defendant succeeded in having carnal access to plaintiff, as a result of
statutes, which leave so many victims of moral wrongs helpless, even though
which the latter conceived a child; that due to her pregnant condition, to avoid
they have actually suffered material and moral injury, the Commission has
embarrassment and social humiliation, plaintiff had to resign her job as secretary
deemed it necessary, in the interest of justice, to incorporate in the proposed
in IBM Philippines, Inc., where she was receiving P230.00 a month; that thereby
Civil Code the following rule:
plaintiff became unable to support herself and her baby; that due to defendant's
refusal to marry plaintiff, as promised, the latter suffered mental anguish,
besmirched reputation, wounded feelings, moral shock, and social humiliation. "ART. 23. Any person who wilfully causes loss or injury to another in a manner
The prayer was for a decree compelling the defendant to recognize the unborn that is contrary to morals, good customs or public policy shall compensate the
child that plaintiff was bearing; to pay her not less than P430.00 a month for her latter for the damage."
support and that of her baby, plus P100,000.00 in moral and exemplary damages,
plus P10,000.00 attorney's fees. An example will illustrate the purview of the foregoing norm: "A" seduces the
nineteen-year old daughter of "X". A promise of marriage either has not been
Upon defendant's motion to dismiss, the court of first instance dismissed the made, or can not be proved. The girl becomes pregnant. Under the present laws,
complaint for failure to state a cause of action. there is no crime, as the girl is above eighteen years of age. Neither can any civil
action for breach of promise of marriage be filed. Therefore, though the grievous
moral wrong has been committed, and though the girl and her family have
Plaintiff Santos duly appealed to the Court of Appeals, and the latter ultimately
suffered incalculable moral damage, she and her parents cannot bring any action
decided the case, holding with the lower court that no cause of action was shown
for damages. But under the proposed article, she and her parents would have
to compel recognition of a child as yet unborn, nor for its support, but decreed
such a right of action.
that the complaint did state a cause of action for damages, premised on Article
21 of the Civil Code of the Philippines, prescribing as follows:
The Court of Appeals seems to have overlooked that the example set forth in the
Code Commission's memorandum refers to a tort upon a minor who has
ART. 21. Any person who wilfully causes loss or injury to another in a
been seduced. The essential feature is seduction, that in law is more than mere
manner that is contrary to morals, good customs or public policy shall
sexual intercourse, or a breach of a promise of marriage; it connotes essentially
compensate the latter for the damage.
the idea of deceit, enticement, superior power or abuse of confidence on the part
of the seducer to which the woman has yielded (U.S. vs. Buenaventura, 27 Phil.
121; U.S. vs. Arlante, 9 Phil. 595).
It has been ruled in the Buenaventura case (supra) that — V. That subsequent thereto and regularly until about July, 1959 except for a
short period in December, 1958 when the defendant was out of the country, the
To constitute seduction there must in all cases be some sufficient promise or defendant through his protestations of love and promises of marriage succeeded
inducement and the woman must yield because of the promise or other in having carnal knowledge with the plaintiff;
inducement. If she consents merely from carnal lust and the intercourse is from
mutual desire, there is no seduction (43 Cent. Dig. tit. Seduction, par. 56). She VI. That as a result of their intimate relationship, the plaintiff started conceiving
must be induced to depart from the path of virtue by the use of some species of which was confirmed by a doctor sometime in July, 1959;
arts, persuasions and wiles, which are calculated to have and do have that effect,
and which result in her ultimately submitting her person to the sexual embraces VII. That upon being certain of her pregnant condition, the plaintiff informed the
of her seducer (27 Phil. 123). defendant and pleaded with him to make good his promises of marriage, but
instead of honoring his promises and righting his wrong, the defendant stopped
And in American Jurisprudence we find: and refrained from seeing the plaintiff since about July, 1959 has not visited the
plaintiff and to all intents and purposes has broken their engagement and his
On the other hand, in an action by the woman, the enticement, persuasion or promises.
deception is the essence of the injury; and a mere proof of intercourse is
insufficient to warrant a recover. Over and above the partisan allegations, the facts stand out that for one whole
year, from 1958 to 1959, the plaintiff-appellee, a woman of adult age,
Accordingly it is not seduction where the willingness arises out of sexual desire maintained intimate sexual relations with appellant, with repeated acts of
or curiosity of the female, and the defendant merely affords her the needed intercourse. Such conduct is incompatible with the idea of seduction. Plainly
opportunity for the commission of the act. It has been emphasized that to allow a there is here voluntariness and mutual passion; for had the appellant been
recovery in all such cases would tend to the demoralization of the female sex, deceived, had she surrendered exclusively because of the deceit, artful
and would be a reward for unchastity by which a class of adventuresses would persuasions and wiles of the defendant, she would not have again yielded to his
be swift to profit." (47 Am. Jur. 662) embraces, much less for one year, without exacting early fulfillment of the
alleged promises of marriage, and would have cut chart all sexual relations upon
finding that defendant did not intend to fulfill his promises. Hence, we conclude
Bearing these principles in mind, let us examine the complaint. The material
that no case is made under Article 21 of the Civil Code, and no other cause of
allegations there are as follows:
action being alleged, no error was committed by the Court of First Instance in
dismissing the complaint.
I. That the plaintiff is of legal age, single, and residing at 56 South E. Diliman,
Quezon City, while defendant is also of legal age, single and residing at 525
Of course, the dismissal must be understood as without prejudice to whatever
Padre Faura, Manila, where he may be served with summons;
actions may correspond to the child of the plaintiff against the defendant-
appellant, if any. On that point, this Court makes no pronouncement, since the
II. That the plaintiff and the defendant became acquainted with each other child's own rights are not here involved.
sometime in December, 1957 and soon thereafter, the defendant started visiting
and courting the plaintiff;
FOR THE FOREGOING REASONS, the decision of the Court of Appeals is
reversed, and that of the Court of First Instance is affirmed. No costs.
III. That the defendant's visits were regular and frequent and in due time the
defendant expressed and professed his undying love and affection for the
plaintiff who also in due time reciprocated the tender feelings; G.R. No. 101749 July 10, 1992
CONRADO BUNAG, JR., petitioner,
IV. That in the course of their engagement, the plaintiff and the defendant as are vs. HON. COURT OF APPEALS, First Division, and ZENAIDA B.
wont of young people in love had frequent outings and dates, became very close
and intimate to each other and sometime in July, 1958, in consideration of the CIRILO, respondents.
defendant's promises of marriage, the plaintiff consented and acceded to the
former's earnest and repeated pleas to have carnal knowledge with him; Petitioner appeals for the reversal of the decision 1 of respondent Court of
Appeals promulgated on May 17, 1991 in CA-G.R. CV No. 07054, entitled
"Zenaida B. Cirilo vs. Conrado Bunag, Sr. and Conrado Bunag, Jr.," which would bump the car against the post if she persisted. Frightened and silenced,
affirmed in toto the decision of the Regional Trial Court, Branch XI at Bacoor, the car travelled its course thru F.B. Harrison Boulevard until they reached a
Cavite, and, implicitly, respondent court's resolution of September 3, motel. Plaintiff was then pulled and dragged from the car against her will, and
1991 2denying petitioner's motion for reconsideration. amidst her cries and pleas. In spite of her struggle she was no match to the joint
strength of the two male combatants because of her natural weakness being a
Respondent court having assiduously discussed the salient antecedents of this woman and her small stature. Eventually, she was brought inside the hotel where
case, vis-a-vis the factual findings of the court below, the evidence of record and the defendant Bunag, Jr. deflowered her against her will and consent. She could
the contentions of the parties, it is appropriate that its findings, which we not fight back and repel the attack because after Bunag, Jr. had forced her to lie
approve and adopt, be extensively reproduced hereunder: down and embraced her, his companion held her two feet, removed her panty,
after which he left. Bunag, Jr. threatened her that he would ask his companion to
come back and hold her feet if she did not surrender her womanhood to him,
Based on the evidence on record, the following facts are considered indisputable:
thus he succeeded in feasting on her virginity. Plaintiff described the pains she
On the afternoon of September 8, 1973, defendant-appellant Bunag, Jr. brought
felt and how blood came out of her private parts after her vagina was penetrated
plaintiff-appellant to a motel or hotel where they had sexual intercourse. Later
that evening, said defendant-appellant brought plaintiff-appellant to the house of by the penis of the defendant Bunag, Jr. (t.s.n. pp. 17-24, Nov. 5, 1974).
his grandmother Juana de Leon in Pamplona, Las Piñas, Metro Manila, where
they lived together as husband and wife for 21 days, or until September 29, 1973. After that outrage on her virginity, plaintiff asked Bunag, Jr. once more to allow
On September 10, 1973, defendant-appellant Bunag, Jr. and plaintiff-appellant her to go home but the latter would not consent and stated that he would only let
filed their respective applications for a marriage license with the Office of the her go after they were married as he intended to marry her, so much so that she
Local Civil Registrar of Bacoor, Cavite. On October 1, 1973, after leaving promised not to make any scandal and to marry him. Thereafter, they took a taxi
plaintiff-appellant, defendant-appellant Bunag, Jr. filed an affidavit withdrawing together after the car that they used had already gone, and proceeded to the
his application for a marriage license. house of Juana de Leon, Bunag, Jr.'s grandmother in Pamplona, Las Piñas,
Metro Manila where they arrived at 9:30 o'clock in the evening (t.s.n., p. 26,
Nov. 5, 1974). At about ten (10) o'clock that same evening, defendant Conrado
Plaintiff-appellant contends that on the afternoon of September 8, 1973,
Bunag, Sr., father of Bunag, Jr. arrived and assured plaintiff that the following
defendant-appellant Bunag, Jr., together with an unidentified male companion,
abducted her in the vicinity of the San Juan de Dios Hospital in Pasay City and day which was a Monday, she and Bunag, Jr. would go to Bacoor, to apply for a
marriage license, which they did. They filed their applications for marriage
brought her to a motel where she was raped. The court a quo, which adopted her
license (Exhibits "A" and "C") and after that plaintiff and defendant Bunag, Jr.
evidence, summarized the same which we paraphrased as follows:
returned to the house of Juana de Leon and lived there as husband and wife from
September 8, 1973 to September 29, 1973.
Plaintiff was 26 years old on November 5, 1974 when she testified, single and
had finished a college course in Commerce (t.s.n., p. 4, Nov. 5, 1974). It appears
On September 29, 1973 defendant Bunag, Jr. left and never returned,
that on September 8, 1973, at about 4:00 o'clock in the afternoon, while she was
humiliating plaintiff and compelled her to go back to her parents on October 3,
walking along Figueras Street, Pasay City on her way to the San Juan de Dios
1973. Plaintiff was ashamed when she went home and could not sleep and eat
Canteen to take her snack, defendant, Conrado Bunag, Jr., came riding in a car
because of the deception done against her by defendants-appellants (t.s.n., p. 35,
driven by a male companion. Plaintiff and defendant Bunag, Jr. were
sweethearts, but two weeks before September 8, 1973, they had a quarrel, and Nov. 5, 1974).
Bunag, Jr. wanted to talk matters over with plaintiff, so that he invited her to
take their merienda at the Aristocrat Restaurant in Manila instead of at the San The testimony of plaintiff was corroborated in toto by her uncle, Vivencio
Juan de Dios Canteen, to which plaintiff obliged, as she believed in his sincerity Bansagan who declared that on September 8, 1973 when plaintiff failed to arrive
(t.s.n., pp. 8-10, Nov. 5, 1974). home at 9:00 o'clock in the evening, his sister who is the mother of plaintiff
asked him to look for her but his efforts proved futile, and he told his sister that
Plaintiff rode in the car and took the front seat beside the driver while Bunag, Jr. plaintiff might have married (baka nag-asawa, t.s.n., pp. 5-6, March 18, 1976).
However, in the afternoon of the next day (Sunday), his sister told him that
seated himself by her right side. The car travelled north on its way to the
Francisco Cabrera, accompanied by barrio captain Jacinto Manalili of Ligas,
Aristocrat Restaurant but upon reaching San Juan Street in Pasay City, it turned
Bacoor, Cavite, informed her that plaintiff and Bunag, Jr. were in Cabrera's
abruptly to the right, to which plaintiff protested, but which the duo ignored and
house, so that her sister requested him to go and see the plaintiff, which he did,
instead threatened her not to make any noise as they were ready to die and
and at the house of Mrs. Juana de Leon in Pamplona, Las Piñas, Metro Manila
he met defendant Conrado Bunag, Sr., who told him, "Pare, the children are here and his father, Conrado Bunag, Sr., as Civil Case No. N-2028 of the Regional
already. Let us settle the matter and have them married." Trial Court, Branch XIX at Bacoor, Cavite. On August 20, 1983, on a
finding, inter alia, that petitioner had forcibly abducted and raped private
He conferred with plaintiff who told him that as she had already lost her honor, respondent, the trial court rendered a decision 4 ordering petitioner Bunag, Jr. to
she would bear her sufferings as Boy Bunag, Jr. and his father promised they pay private respondent P80,000.00 as moral damages, P20,000.00 as exemplary
would be married. damages, P20,000.00 by way of temperate damages, and P10,000.00 for and as
attorney's fees, as well as the costs of suit. Defendant Conrado Bunag, Sr. was
Defendants-appellants, on the other hand, deny that defendant-appellant absolved from any and all liability.
Conrado Bunag, Jr. abducted and raped plaintiff-appellant on September 8, 1973.
On the contrary, plaintiff-appellant and defendant-appellant Bunag, Jr. eloped on Private respondent appealed that portion of the lower court's decision
that date because of the opposition of the latter's father to their relationship. disculpating Conrado Bunag, Sr. from civil liability in this case. On the other
hand, the Bunags, as defendants-appellants, assigned in their appeal several
Defendant-appellants claim that defendant-appellant Bunag, Jr. and plaintiff- errors allegedly committed by trial court, which were summarized by respondent
appellant had earlier made plans to elope and get married, and this fact was court as follows: (1) in finding that defendant-appellant Conrado Bunag, Jr.
forcibly abducted and raped plaintiff-appellant; (2) in finding that defendants-
known to their friends, among them, Architect Chito Rodriguez. The couple
appellants promised plaintiff-appellant that she would be wed to defendant-
made good their plans to elope on the afternoon of September 8, 1973, when
appellant Conrado Bunag, Jr.; and (3) in awarding plaintiff-appellant damages
defendant-appellant Bunag, Jr., accompanied by his friend Guillermo Ramos, Jr.,
for the breach of defendants-appellants' promise of marriage. 5
met plaintiff-appellant and her officemate named Lydia in the vicinity of the San
Juan de Dios Hospital. The foursome then proceeded to (the) aforesaid hospital's
canteen where they had some snacks. Later, Guillermo Ramos, Jr. took Lydia to As stated at the outset, on May 17, 1991 respondent Court of Appeals rendered
Quirino Avenue where she could get a ride home, thereby leaving the defendant- judgment dismissing both appeals and affirming in toto the decision of the trial
appellant Bunag, Jr. and plaintiff-appellant alone. According to defendant- court. His motion for reconsideration having been denied, petitioner Bunag, Jr.
appellant Bunag, Jr., after Guillermo Ramos, Jr. and Lydia left, he and plaintiff- is before us on a petition for review, contending that (1) respondent court failed
appellant took a taxi to the Golden Gate and Flamingo Hotels where they tried to to consider vital exhibits, testimonies and incidents for petitioner's defense,
get a room, but these were full. They finally got a room at the Holiday Hotel, resulting in the misapprehensions of facts and violative of the law on preparation
where defendant-appellant registered using his real name and residence of judgment; and (2) it erred in the application of the proper law and
certificate number. Three hours later, the couple check out of the hotel and jurisprudence by holding that there was forcible abduction with rape, not just a
proceeded to the house of Juana de Leon at Pamplona, Las Piñas, where they simple elopement and an agreement to marry, and in the award of excessive
stayed until September 19, 1873. Defendant-appellant claims that bitter damages. 6
disagreements with the plaintiff-appellant over money and the threats made to
his life prompted him to break off their plan to get married. Petitioner Bunag, Jr. first contends that both the trial and appellate courts failed
to take into consideration the alleged fact that he and private respondent had
During this period, defendant-appellant Bunag, Sr. denied having gone to the agreed to marry, and that there was no case of forcible abduction with rape, but
house of Juan de Leon and telling plaintiff-appellant that she would be wed to one of simple elopement and agreement to marry. It is averred that the
defendant-appellant Bunag, Jr. In fact, he phoned Atty. Conrado Adreneda, agreement to marry has been sufficiently proven by the testimonies of the
member of the board of directors of Mandala Corporation, defendant-appellant witnesses for both parties and the exhibits presented in court.
Bunag, Jr.'s employer, three times between the evening of September 8, 1973
and September 9, 1973 inquiring as to the whereabouts of his son. He came to This submission, therefore, clearly hinges on the credibility of the witnesses and
know about his son's whereabouts when he was told of the couple's elopement evidence presented by the parties and the weight accorded thereto in the factual
late in the afternoon of September 9, 1973 by his mother Candida Gawaran. He findings of the trial court and the Court of Appeals. In effect, what petitioner
likewise denied having met relatives and emissaries of plaintiff-appellant and would want this Court to do is to evaluate and analyze anew the evidence, both
agreeing to her marriage to his son. 3 testimonial and documentary, presented before and calibrated by the trial court,
and as further meticulously reviewed and discussed by respondent court.
A complaint for damages for alleged breach of promise to marry was filed by
herein private respondent Zenaida B. Cirilo against petitioner Conrado Bunag, Jr.
The issue raised primarily and ineluctably involves questions of fact. We are, against her will, and thereafter promising to marry her in order to escape
therefore, once again constrained to stress the well-entrenched statutory and criminal liability, only to thereafter renege on such promise after cohabiting with
jurisprudential mandate that findings of fact of the Court of Appeals are, as a her for twenty-one days, irremissibly constitute acts contrary to morals and good
rule, conclusive upon this Court. Only questions of law, distinctly set forth, may customs. These are grossly insensate and reprehensible transgressions which
be raised in a petition for review on certiorari under Rule 45 of the Rules of indisputably warrant and abundantly justify the award of moral and exemplary
Court, subject to clearly settled exceptions in case law. damages, pursuant to Article 21 in relation to paragraphs 3 and 10, Article 2219,
and Article 2229 and 2234 of Civil Code.
Our jurisdiction in cases brought to us from the Court of Appeals is limited to
reviewing and revising the errors of law imputed to the latter, its findings of fact Petitioner would, however, belabor the fact that said damages were awarded by
being conclusive. This Court has emphatically declared that it is not its function the trial court on the basis of a finding that he is guilty of forcible abduction with
to analyze or weigh such evidence all over again, its jurisdiction being limited to rape, despite the prior dismissal of the complaint therefor filed by private
reviewing errors of law that might have been committed by the lower court. respondent with the Pasay City Fiscal's Office.
Barring, therefore, a showing that the findings complained of are totally devoid
of support in the record, or that they are so glaringly erroneous as to constitute Generally, the basis of civil liability from crime is the fundamental postulate of
serious abuse of discretion, such findings must stand, for this Court is not our law that every person criminally liable for a felony is also civilly liable. In
expected or required to examine or contrast the oral and documentary evidence other words, criminal liability will give rise to civil liability ex delicto only if the
submitted by the parties. 7 Neither does the instant case reveal any feature same felonious act or omission results in damage or injury to another and is the
falling within, any of the exceptions which under our decisional rules may direct and proximate cause thereof. 11 Hence, extinction of the penal action does
warrant a review of the factual findings of the Court of Appeals. On the not carry with it the extinction of civil liability unless the extinction proceeds
foregoing considerations and our review of the records, we sustain the holding from a declaration in a final judgment that the fact from which the civil might
of respondent court in favor of private respondent. arise did not exist. 12

Petitioner likewise asserts that since action involves a breach of promise to In the instant case, the dismissal of the complaint for forcible abduction with
marry, the trial court erred in awarding damages. rape was by mere resolution of the fiscal at the preliminary investigation stage.
There is no declaration in a final judgment that the fact from which the civil case
It is true that in this jurisdiction, we adhere to the time-honored rule that an might arise did not exist. Consequently, the dismissal did not in any way affect
action for breach of promise to marry has no standing in the civil law, apart from the right of herein private respondent to institute a civil action arising from the
the right to recover money or property advanced by the plaintiff upon the faith offense because such preliminary dismissal of the penal action did not carry with
of such promise. 8 Generally, therefore, a breach of promise to marry per se is it the extinction of the civil action.
not actionable, except where the plaintiff has actually incurred expenses for the
wedding and the necessary incidents thereof. The reason most often given for this holding is that the two proceedings
involved are not between the same parties. Furthermore, it has long been
However, the award of moral damages is allowed in cases specified in or emphasized, with continuing validity up to now, that there are different rules as
analogous to those provided in Article 2219 of the Civil Code. Correlatively, to the competency of witnesses and the quantum of evidence in criminal and
under Article 21 of said Code, in relation to paragraph 10 of said Article 2219, civil proceedings. In a criminal action, the State must prove its case by evidence
any person who wilfully causes loss or injury to another in a manner that is which shows the guilt of the accused beyond reasonable doubt, while in a civil
contrary to morals, good customs or public policy shall compensate the latter for action it is sufficient for the plaintiff to sustain his cause by preponderance of
moral damages. 9 Article 21 was adopted to remedy the countless gaps in the evidence only. 13 Thus, in Rillon, et al. vs. Rillon, 14 we stressed that it is not
statutes which leave so many victims of moral wrongs helpless even though they now necessary that a criminal prosecution for rape be first instituted and
have actually suffered material and moral injury, and is intended to vouchsafe prosecuted to final judgment before a civil action based on said offense in favor
adequate legal remedy for that untold number of moral wrongs which is of the offended woman can likewise be instituted and prosecuted to final
impossible for human foresight to specifically provide for in the statutes. 10 judgment.

Under the circumstances obtaining in the case at bar, the acts of petitioner in WHEREFORE, the petition is hereby DENIED for lack of merit, and the
forcibly abducting private respondent and having carnal knowledge with her assailed judgment and resolution are hereby AFFIRMED. SO ORDERED.
G.R. No. 57227 May 14, 1992 of counterclaim, he further prayed for the payment of exemplary damages and
litigation expense including attorney's fees for the filing of the malicious
AMELITA CONSTANTINO and MICHAEL CONSTANTINO, the latter
complaint.
represented herein by the former, his mother and natural
guardian, petitioners, vs. IVAN MENDEZ and the HONORABLE On September 1, 1975, Amelita Constantino filed a motion for leave to amend
COURT OF APPEALS, respondents. the complaint impleading as co-plaintiff her son Michael Constantino who was
born on August 3, 1975. In its order dated September 4, 1975, the trial court
This is a petition for review on certiorari questioning the decision1 dated April admitted the amended complaint.
30, 1981 of the Court of Appeals in CA-G.R. No. 61552-R which dismissed
petitioner's complaint and set aside the resolution2 dated October 21, 1976 of the On September 11, 1975, Ivan Mendez filed his answer to the amended
then Court of First Instance of Davao, 16th Judicial District, amending the complaint reiterating his previous answer denying that Michael Constantino is
dispositive portion of its decision dated June 21, 1976 and ordering private his illegitimate son.
respondent Ivan Mendez: (1) to acknowledge the minor Michael Constantino as
his illegitimate child; (2) to give a monthly support of P300.00 to the minor After hearing, the trial court rendered a decision dated June 21, 1976, the
child; (3) to pay complainant Amelita Constantino the sum of P8,200.00 as dispositive portion of which reads, viz:
actual and moral damages; and (4) to pay attorney's fees in the sum of P5,000
plus costs. WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor
of plaintiff Amelita Constantino and against defendant Ivan Mendez, ordering
It appears on record that on June 5, 1975, petitioner Amelita Constantino filed the latter to pay Amelita Constantino the sum of P8,000.00 by way of actual and
an action for acknowledgment, support and damages against private respondent moral damages; and, the sum of P3,000.00, as and by way of attorney's fees. The
Ivan Mendez. The case was filed with the then CFI of Davao, 10th Judicial defendant shall pay the costs of this suit. SO ORDERED.
District and docketed as Civil Case No. 8881. In her complaint, Amelita
Constantino alleges, among others, that sometime in the month of August, 1974, From the above decision, both parties filed their separate motion for
she met Ivan Mendez at Tony's Restaurant located at Sta. Cruz, Manila, where reconsideration. Ivan Mendez anchored his motion on the ground that the award
she worked as a waitress; that the day following their first meeting, Ivan invited of damages was not supported by evidence. Amelita Constantino, on the other
Amelita to dine with him at Hotel Enrico where he was billeted; that while hand, sought the recognition and support of her son Michael Constantino as the
dining, Ivan professed his love and courted Amelita; that Amelita asked for time illegitimate son of Ivan Mendez.
to think about Ivan's proposal; that at about 11:00 o'clock in the evening,
Amelita asked Ivan to bring her home to which the latter agreed, that on the
In its resolution dated October 21, 1976, the trial court granted Amelita
pretext of getting something, Ivan brought Amelita inside his hotel room and
Constantino's motion for reconsideration, and amended the dispositive portion of
through a promise of marriage succeeded in having sexual intercourse with the
its decision dated June 21, 1976 to read as follows, viz:
latter; that after the sexual contact, Ivan confessed to Amelita that he is a
married man; that they repeated their sexual contact in the months of September
and November, 1974, whenever Ivan is in Manila, as a result of which Amelita WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor
got pregnant; that her pleas for help and support fell on deaf ears; that Amelita of plaintiff Amelita Constantino and plaintiff-minor Michael Constantino, and
had no sexual relations with any other man except Ivan who is the father of the against defendant Ivan Mendez ordering the latter to pay Amelita Constantino
child yet to be born at the time of the filing of the complaint; that because of her the sum of P8,000.00 by way of actual and moral damages and the sum of
pregnancy, Amelita was forced to leave her work as a waitress; that Ivan is a P200.00 as and by way of payment of the hospital and medical bills incurred
prosperous businessman of Davao City with a monthly income of P5,000 to during the delivery of plaintiff-minor Michael Constantino; to recognize as his
P8,000. As relief, Amelita prayed for the recognition of the unborn child, the own illegitimate child the plaintiff-minor Michael Constantino who shall be
payment of actual, moral and exemplary damages, attorney's fees plus costs. entitled to all the rights, privileges and benefits appertaining to a child of such
status; to give a permanent monthly support in favor of plaintiff Michael
Constantino the amount of P300.00; and the sum of P5,000.00 as and by way of
In his answer dated August 5, 1975, Ivan admitted that he met Amelita at Tony's
attorney's fees. The defendant shall pay the costs of this suit.
Cocktail Lounge but denied having sexual knowledge or illicit relations with her.
He prayed for the dismissal of the complaint for lack of cause of action. By way
Let this Order form part of the decision dated June 21, 1976. SO ORDERED.
On appeal to the Court of Appeals, the above amended decision was set aside Michael Constantino is a full-term baby born on August 3, 1975 (Exhibit 6) so
and the complaint was dismissed. Hence, this petition for review. that as correctly pointed out by private respondent's counsel, citing medical
science (Williams Obstetrics, Tenth Ed., p. 198) to the effect that "the mean
Basically, the issue to be resolved in the case at bar is whether or not the Court duration of actual pregnancy, counting from the day of conception must be close
of Appeals committed a reversible error in setting aside the decision of the trial to 267 days", the conception of the child (Michael) must have taken place about
court and in dismissing the complaint. 267 days before August 3, 1975 or sometime in the second week of November,
1974. While Amelita testified that she had sexual contact with Ivan in November,
Petitioners contend that the Court of Appeals erred in reversing the factual 1974, nevertheless said testimony is contradicted by her own evidence (Exh. F),
findings of the trial and in not affirming the decision of the trial court. They also the letter dated February 11, 1975, addressed to Ivan Mendez requesting for a
conference, prepared by her own counsel Atty. Roberto Sarenas to whom she
pointed out that the appellate court committed a misapprehension of facts when
must have confided the attendant circumstances of her pregnancy while still
it concluded that Ivan did not have sexual access with Amelita during the first or
fresh in her memory, informing Ivan that Amelita is four (4) months pregnant so
second week of November, 1976 (should be 1974), the time of the conception of
that applying the period of the duration of actual pregnancy, the child was
the child.
conceived on or about October 11, 1974.
It must be stressed at the outset that factual findings of the trial court have only a
Petitioner's assertion that Ivan is her first and only boyfriend (TSN, December 8,
persuasive and not a conclusive effect on the Court of Appeals. In the exercise
1975, p. 65) is belied by Exhibit 2, her own letter addressed to Mrs. Mendez
of its appellate jurisdiction, it is the duty of the Court of Appeals to review the
where she revealed the reason for her attachment to Ivan who possessed certain
factual findings of the trial court and rectify the errors it committed as may have
been properly assigned and as could be established by a re-examination of the traits not possessed by her boyfriend. She also confided that she had a quarrel
evidence on record. It is the factual findings of the Court of Appeals, not those with her boyfriend because of gossips so she left her work. An order for
recognition and support may create an unwholesome atmosphere or may be an
of the trial court, that as a rule are considered final and conclusive even on this
irritant in the family or lives of the parties so that it must be issued only if
Court (Hermo v. Hon. Court of Appeals, et al., 155 SCRA 24 [1987]). This
paternity or filiation is established by clear and convincing evidence. The burden
being a petition for certiorari under Rule 45 of the Rules of Court, this Court
of proof is on Amelita to establish her affirmative allegations that Ivan is the
will review only errors of law committed by the Court of Appeals. It is not the
function of this Court to re-examine all over again the oral and documentary father of her son. Consequently, in the absence of clear and convincing evidence
establishing paternity or filiation, the complaint must be dismissed.
evidence submitted by the parties unless the findings of facts of the Court of
Appeals is not supported by the evidence on record or the judgment is based on
misapprehension of facts (Remalante v. Tibe, et al., 158 SCRA 138 [1988]; As regards Amelita's claim for damages which is based on Articles 193 & 214 of
Hernandez v. Court of Appeals, et al., 149 SCRA 97 [1987]). the Civil Code on the theory that through Ivan's promise of marriage, she
surrendered her virginity, we cannot but agree with the Court of Appeals that
more sexual intercourse is not by itself a basis for recovery. Damages could only
It is the conclusion of the Court of Appeals, based on the evidence on record,
be awarded if sexual intercourse is not a product of voluntariness and mutual
that Amelita Constantino has not proved by clear and convincing evidence her
desire. At the time she met Ivan at Tony's Restaurant, Amelita was already 28
claim that Ivan Mendez is the father of her son Michael Constantino. Such
years old and she admitted that she was attracted to Ivan (TSN, December 3,
conclusion based on the evaluation of the evidence on record is controlling on
this Court as the same is supported by the evidence on record. Even the trial 1975, p. 83). Her attraction to Ivan is the reason why she surrendered her
court initially entertained such posture. It ordered the recognition of Michael as womanhood. Had she been induced or deceived because of a promise of
marriage, she could have immediately severed her relation with Ivan when she
the illegitimate son of Ivan only when acting on the motions for reconsideration,
was informed after their first sexual contact sometime in August, 1974, that he
it reconsidered, on October 21, 1976, its earlier decision dated June 21, 1976.
was a married man. Her declaration that in the months of September, October
Amelita's testimony on cross-examination that she had sexual contact with Ivan
and November, 1974, they repeated their sexual intercourse only indicates that
in Manila in the first or second week of November, 1974 (TSN, December 8,
1975, p. 108) is inconsistent with her response that she could not remember the passion and not the alleged promise of marriage was the moving force that made
date of their last sexual intercourse in November, 1974 (Ibid, p. 106). Sexual her submit herself to Ivan.
contact of Ivan and Amelita in the first or second week of November, 1974 is
the crucial point that was not even established on direct examination as she WHEREFORE, the instant petition is Dismissed for lack of merit.
merely testified that she had sexual intercourse with Ivan in the months of
September, October and November, 1974.
G.R. No. 82808, July 11, 1991 On November 11, 1984, the defendants filed a motion for reconsideration of the
order of default.
DENNIS L. LAO, petitioner,
vs. HON. COURT OF APPEALS, JUDGE FLORENTINO FLOR, On November 13, 1984, the motion was granted, and the order of default was set
Regional Trial Court, Branch 89 of Morong, Rizal, BENJAMIN L. aside.
ESPIRITU, MANUEL QUERUBIN and CHAN TONG, respondents.
On January 16, 1985, the defendants, including herein petition petitioner Lao,
For being a witness in an unsuccessful estafa case which his employer filed and their counsel, again failed to attend the pretrial despite due notice to the
against a debtor who had defaulted in paying his just obligation, the petitioner latter who, however, failed to notify Lao. They were once more declared in
was sued, together with his employer, for damages for malicious prosecution. default. The private respondent was allowed to present his evidence ex parte.
The issue in this case is whether the damages awarded to the defaulting debtor
may be satisfied by execution against the employee's property since his On January 22, 1985, a decision was rendered by the trial court in favor of
employer's business has already folded up. Espiritu ordering the defendants Lao and St. Joseph Lumber to pay jointly and
severally to Espiritu the sums of P100,000 as moral damages, P5,000 as
Petitioner Dennis Lao was an employee of the New St. Joseph Lumber & attorney's fees, and costs.
Hardware Supply, hereinafter called St. Joseph Lumber, owned by the private
respondent, Chan Tong. In January 1981, St. Joseph Lumber filed a collection Petitioner's motion for reconsideration of the decision was denied by the trial
suit against a customer, the private respondent, Benjamin Espiritu, for unpaid court.
purchases of construction materials from St. Joseph Lumber.
On February 25, 1985, Lao filed a motion for new trial on the ground of accident
In November 1981, upon the advice of its lawyer, St. Joseph Lumber filed a and insufficiency of evidence, but it was denied by the trial court.
criminal complaint for estafa against Espiritu, based on the same transaction.
Since the petitioner was the employee who transacted business with Espiritu, he He appealed to the Court of Appeals (CA-G.R. CV No. 06796, "Benjamin L.
was directed by his employer, the firm's owner, Chan Tong, to sign the affidavit Espiritu, plaintiff-appellee vs. Dennis Lao and New St. Joseph Lumber and
or complaint prepared by the firm's, lawyer, Attorney Manuel Querubin. Hardware Supply, defendants-appellant"). The appellate court dismissed his
appeal on May 21, 1987. He filed this special civil action of certiorari and
Finding probable cause after conducting a preliminary investigation of the prohibition to partially annul the appellate court's decision and to enjoin the
charge, the investigating fiscal filed an information for estafa in the Court of execution of said decision against him. The petitioner avers that the Court of
First Instance of Quezon City against Espiritu. The case was however later Appeals erred:
dismissed because the court believed that Espiritu's liability was only civil, not
criminal. 1. in not holding that he (petitioner Lao) has a valid defense to the
action for malicious prosecution in Civil Case No. 84-M;
On April 12, 1984, Espiritu filed a complaint for malicious prosecution against
the petitioner and St. Joseph Lumber, praying that the defendants be ordered to 2. in not holding that he was deprived of a day in court due to the gross
pay him P500,000 as moral damages, P10,000 as actual damages, and P100,000 ignorance, negligence and dereliction of duty of the lawyer whom his
as attorney's fees. employer hired as his and the company's counsel, but who failed to
protect his interest and even acted in a manner inimical to him; and
In his answer to the complaint, the petitioner alleged that he acted only as agent
or employee of St. Joseph Lumber when he executed the affidavit which his 3. in not partially annulling the decision of the trial court dated January
employer submitted to the investigating fiscal who conducted the preliminary 22, 1985 insofar as he is concerned.
investigation of his employer's estafa charge against Espiritu.
The petition is meritorious.
The pre-trial of the case was set on October 30, 1984. Since the defendants and
their counsel failed to appear in court, they were declared in default.
Lao had a valid defense to the action for malicious prosecution (Civil Case No. When adverse judgment was entered by the court against Lao and the lumber
84-M) because it was his employer, St. Joseph Lumber, not himself, that was the company, Attorney Querubin did not file a motion for reconsideration of the
complainant in the estafa case against Espiritu. It was Chan Tong, the owner of decision. He allowed it to become final, because anyway Espiritu would not be
the St. Joseph Lumber, who, upon advice of his counsel, filed the criminal able to satisfy his judgment against Chan Tong who had informed his lawyer
complaint against Espiritu. Lao was only a witness in the case. He had no that the St. Joseph Lumber was insolvent, had gone out of business, and did not
personal interest in the prosecution of Espiritu for he was not the party have any leviable assets. As a result, Espiritu levied on the petitioner's car to
defrauded by Espiritu. He executed the affidavit which was used as basis of the satisfy the judgment in his favor since the company itself had no more assets
criminal charge against Espiritu because he was the salesman who sold the that he could seize.
construction materials to Espiritu. He was only an agent of St. Joseph Lumber,
hence, not personally liable to the party with whom he contracted (Art. 1897, In view of the foregoing circumstances, the judgment against Lao was a nullity
Civil Code; Philippine Products Co. vs. Primateria Societe Anonyme, 122 Phil. and should be set aside. Its execution against the petitioner cannot be allowed to
698). proceed.

To maintain an action for damages based on malicious prosecution, three WHEREFORE, judgment is hereby rendered partially setting aside the decision
elements must be present: First, the fact of the prosecution and the further fact of the Court of Appeals dated May 21, 1987, insofar as it declared the petitioner,
that the defendant was himself the prosecutor, and that the action was finally Dennis Lao, solidarily liable with St. Joseph Lumber to pay the damages
terminated with an acquittal; second, that in bringing the action, the prosecutor awarded to the private respondent Benjamin Espiritu. Said petitioner is hereby
acted without probable cause; and third, the prosecutor was actuated or impelled absolved from any liability to the private respondent arising from the
by legal malice (Ferrer vs. Vergara, 52 O.G. 291). unsuccessful prosecution of Criminal Case No. Q-20086 for estafa against said
private respondent. Costs against the private respondent.
Lao was only a witness, not the prosecutor in the estafa case. The prosecutor
was his employer, Chan Tong or the St. Joseph Lumber. SO ORDERED.

There was probable cause for the charge of estafa against Espiritu, as found and
certified by the investigating fiscal himself.1âwphi1 G.R. No. 107019 March 20, 1997
FRANKLIN M. DRILON, AURELIO C. TRAMPE, GREGORIO A.
Lao was not motivated by malice in making the affidavit upon which the fiscal ARIZALA, CESAR M. SOLIS and FERDINAND R.
based the filing of the information against Espiritu. He executed it as an ABESAMIS, petitioners,
employee, a salesman of the St. Joseph Lumber from whom Espiritu made his
purchases of construction materials and who, therefore, had personal knowledge
vs. COURT OF APPEALS, HON. GEORGE C. MACLI-ING, in his
of the transaction. Although the prosecution of Espiritu for estafa did not prosper, capacity as Presiding Judge of Branch 100 of the Regional Trial
the unsuccessful prosecution may not be labelled as malicious. "Sound Court of Quezon City, and HOMOBONO ADAZA, respondents.
principles of justice and public policy dictate that persons shall have free resort
to the courts for redress of wrongs and vindication of their rights without later Petitioners seek the reversal of the Resolutions of respondent Court of Appeals
having to stand trial for instituting prosecutions in good faith" (Buenaventura vs. in CA-G.R. SP No. 25080 dated January 31, 1992 and September 2, 1992
Sto. Domingo, 103 Phil. 239). affirming the Orders, dated February 8, 1991 and May 14, 1991, of respondent
Judge George C. Macli-ing which denied herein petitioner's Motion to Dismiss
There is merit in petitioner's contention that he was deprived of his day in court the complaint filed in Civil Case No. Q-90-6073 by respondent Homobono
in the damage suit filed by Espiritu, due to the gross ignorance, negligence, and Adaza.
dereliction of duty of Attorney Manuel Querubin whom his employer had hired
to act as counsel for him and the St. Joseph Lumber. However, Attorney The facts are not in dispute.
Querubin neglected to defend Lao. He concentrated on the defense of the
company and completely forgot his duty to defend Lao as well. He never
In a letter-complaint to then Secretary of Justice Franklin Drilon1 dated March
informed Lao about the pre-trial conferences. In fact, he (Attorney Querubin)
20, 1990, General Renato de Villa,2who was then the Chief of Staff of the
neglected to attend other pre-trial conferences set by the court.
Armed Forces of the Philippines, requested the Department of Justice to order
the investigation of several individuals named therein, including herein private file their answer to the complaint within fifteen (15) days from receipt of the
respondent Homobono Adaza, for their alleged participation in the failed Order.
December 1989 coup d'etat. The letter-complaint was based on the affidavit of
Brigadier General Alejandro Galido, Captain Oscarlito Mapalo, Colonel Juan Petitioners moved for a reconsideration of the Order of denial, but the same was
Mamorno, Colonel Hernani Figueroa and Major Eduardo Sebastian. likewise denied by respondent Judge in another Order dated May 14, 1991. 9 The
subsequent Order reiterated that petitioners file their responsive pleading within
Gen. de Villa's letter-complaint with its annexes was referred for preliminary the prescribed reglementary period.
inquiry to the Special Composite Team of Prosecutors created pursuant to
Department of Justice Order No. 5 dated January 10, 1990. Petitioner then Instead of filing their answer as ordered, petitioners filed on June 5, 1991 a
Assistant Chief State Prosecutor Aurelio Trampe, 3 the Team Leader, finding petition for certiorari under Rule 65 before the Court of Appeals, docketed as
sufficient basis to continue the inquiry, issued a subpoena to the individuals CA-G.R. No. 25080, alleging grave abuse of discretion on the part of the
named in the letter-complaint, Adaza included, and assigned the case for respondent Judge in ruling that sufficient cause of action exists to warrant a full-
preliminary investigation to a panel of investigators composed of prosecutors blown hearing of the case filed by Adaza and thus denying petitioners' Motion to
George Arizala, as Chairman, and Ferdinand Abesamis and Cesar Solis as Dismiss.
members. The case was docketed as I.S. No. DOJ-SC-90-013.
In its Resolution promulgated on January 31, 1992, the appellate court dismissed
On April 17, 1990, the panel released its findings, thru a Resolution, which reads: the petition for lack of merit and ordered respondent Judge to proceed with the
trial of Civil Case No. Q-90-6073. 10 A Motion for Reconsideration having been
PREMISES CONSIDERED, we find and so hold that there is probable cause to subsequently filed on February 28, 1992, the court a quo denied the same in a
hold herein respondents for trial for the crime of REBELLION WITH Resolution dated September 2, 1992. 11
MURDER AND FRUSTRATED MURDER. Hence we respectfully recommend
the filing of the corresponding information against them in court.4 Hence, this petition, dated October 9, 1992, pleading this Court to exercise its
power of review under Rule 45 of the Revised Rules of Court.
The above Resolution became the basis for the filing of an Information, 5 dated
April 18, 1990, charging private respondent with the crime of rebellion with On January 13, 1993, however, this Court, thru the Second Division, dismissed
murder and frustrated murder before the Regional Trial Court of Quezon City, the petition for failure to comply with Revised Circular No. 1-88, particularly
with no recommendation as to bail.6 the requirement on the payment of the prescribed docketing fees. 12

Feeling aggrieved by the institution of these proceedings against him, private On March 8, 1993, 13 we reinstated the petition and required the respondents to
respondent Adaza filed a complaint for damages,7 dated July 11, 1990, before comment on the aforesaid petition. In the same Resolution, a temporary
Branch 100 of the Regional Trial Court of Quezon City. The complaint was restraining order was issued by this Court enjoining respondent Judge from
docketed as Civil Case No. Q-90-6073 entitled, "Homobono Adaza, plaintiff further proceeding with Civil Case No. Q-90-6073 until further orders from this
versus Franklin Drilon, et al., respondents." In his complaint, Adaza charged Court.
petitioners with engaging in a deliberate, willful and malicious experimentation
by filing against him a charge of rebellion complexed with murder and frustrated
The petition has merit.
murder when petitioners, according to Adaza, were fully aware of the non-
existence of such crime in the statute books.
In his Comment, 14 dated March 23, 1993, respondent Adaza maintains that his
claim before the trial court was merely a suit for damages based on tort by
On October 15, 1990, petitioners filed a Motion to Dismiss Adaza's complaint
reason of petitioners' various malfeasance, misfeasance and nonfeasance in
on the ground that said complaint states no actionable wrong constituting a valid
office, as well as for violation by the petitioners of Section 3 (e) of Republic Act
cause of action against petitioners.
No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. It was
not a suit for malicious prosecution.
On February 8, 1991, public respondent judge issued an Order 8 denying
petitioners' Motion to Dismiss. In the same Order, petitioners were required to
Private respondent is taking us for a ride. A cursory perusal of the complaint
filed by Adaza before respondent Judge George Macli-ing reveals that it is one
for malicious prosecution against the petitioners for the latter's filing of the plaintiff must prove three (3) elements: (1) the fact of the prosecution and the
charge against him of rebellion with murder and frustrated murder. An further fact that the defendant was himself the prosecutor and that the action
examination of the records would show that this latest posture as to the nature of finally terminated with an acquittal; (2) that in bringing the action, the
his cause of action is only being raised for the first time on appeal. Nowhere in prosecutor acted without probable cause; and (3) that the prosecutor was
his complaint filed with the trial court did respondent Adaza allege that his actuated or impelled by legal malice, that is by improper or sinister
action is one based on tort or on Section 3 (e) or Republic Act No. 3019. Such a motive. 20 All these requisites must concur.
change of theory cannot be allowed. When a party adopts a certain theory in the
court below, he will not be permitted to change his theory on appeal, for to Judging from the face of the complaint itself filed by Adaza against the herein
permit him to do so would not only be unfair to the other party but it would also petitioners, none of the foregoing requisites have been alleged therein, thus
be offensive to the basic rules of fair play, justice and due process. 15 Any rendering the complaint dismissible on the ground of failure to state a cause of
member of the Bar, even if not too schooled in the art of litigation, would easily action under Section 1 (g), Rule 16 of the Revised Rules of Court.
discern that Adaza's complaint is no doubt a suit for damages for malicious
prosecution against the herein petitioners. Unfortunately, however, his complaint
There is nothing in the records which shows, and the complaint does not allege,
filed with the trial court suffers from a fatal infirmity — that of failure to state a that Criminal Case No. Q-90-11855, filed by the petitioners against respondent
cause of action — and should have been dismissed right from the start. We shall Adaza for Rebellion with Murder and Frustrated Murder, has been finally
show why.
terminated and therein accused Adaza acquitted of the charge. Not even Adaza
himself, thru counsel, makes any positive asseveration on this aspect that would
The term malicious prosecution has been defined in various ways. In American establish his acquittal. Insofar as Criminal Case No. Q-90-11855 is concerned,
jurisdiction, it is defined as: what appears clear from the records only is that respondent has been discharged
on a writ of habeas corpus and granted bail. 21 This is not, however, considered
One begun in malice without probable cause to believe the charges can be the termination of the action contemplated under Philippine jurisdiction to
sustained (Eustace v. Dechter, 28 Cal. App. 2d. 706, 83 P. 2d. 525). Instituted warrant the institution of a malicious prosecution suit against those responsible
with intention of injuring defendant and without probable cause, and which for the filing of the information against him.
terminates in favor of the person prosecuted. For this injury an action on the case
lies, called the action of malicious prosecution (Hicks v. Brantley, 29 S.E. 459, The complaint likewise does not make any allegation that the prosecution acted
102 Ga. 264; Eggett v. Allen, 96 N.W. 803, 119 Wis. 625). 16 without probable cause in filing the criminal information dated April 18, 1990
for rebellion with murder and frustrated murder. Elementarily defined, probable
In Philippine jurisdiction, it has been defined as: cause is the existence of such facts and circumstances as would excite the belief,
in a reasonable mind, acting on the facts within the knowledge of the prosecutor,
An action for damages brought by one against whom a criminal prosecution, that the person charged was guilty of the crime for which he was prosecuted. It
civil suit, or other legal proceeding has been instituted maliciously and without is well-settled that one cannot be held liable for maliciously instituting a
probable cause, after the termination of such prosecution, suit, or other prosecution where one has acted with probable cause. Elsewise stated, a suit for
proceeding in favor of the defendant therein. The gist of the action is the putting malicious prosecution will lie only in cases where a legal prosecution has been
of legal process in force, regularly, for the mere purpose of vexation or injury carried on without probable cause. The reason for this rule is that it would be a
(Cabasaan v. Anota, 14169-R, November 19, 1956). 17 very great discouragement to public justice, if prosecutors, who had tolerable
ground of suspicion, were liable to be sued at law when their indictment
miscarried. 22
The statutory basis for a civil action for damages for malicious prosecution are
found in the provisions of the New Civil Code on Human Relations and on
damages particularly Articles 19, 20, 21, 26, 29, 32, 33, 35, 2217 and 2219 In the case under consideration, the decision of the Special Team of Prosecutors
(8). 18 To constitute malicious prosecution, however, there must be proof that the to file the information for rebellion with murder and frustrated murder against
prosecution was prompted by a sinister design to vex and humiliate a person, respondent Adaza, among others, cannot be dismissed as the mere product of
and that it was initiated deliberately by the defendant knowing that his charges whim or caprice on the part of the prosecutors who conducted the preliminary
were false and groundless. Concededly, the mere act of submitting a case to the investigation. Said decision was fully justified in an eighteen (18)-page
authorities for prosecution does not make one liable for malicious Resolution dated April 17, 1990. 23 While it is true that the petitioners were fully
prosecution. 19 Thus, in order for a malicious prosecution suit to prosper, the aware of the prevailing jurisprudence enunciated in People
v. Hernandez, 24 which proscribes the complexing of murder and other common
crimes with rebellion, petitioners were of the honest conviction that the all-embracing applicability of the doctrine considering the emergence of
Hernandez Case can be differentiated from the present case. The petitioners thus alternative modes of seizing the powers of the duly-constituted Government not
argued: contemplated in Articles 134 and 135 of the Revised Penal Code and their
consequent effects on the lives of our people. The doctrine was good law then,
Of course we are aware of the ruling in People vs. Hernandez, 99 Phil. 515, but I believe that there is a certain aspect of the Hernandez doctrine that needs
which held that common crimes like murder, arson, etc. are absorbed by clarification. 28
rebellion. However, the Hernandez case is different from the present case before
us. In the Hernandez case, the common crimes of murder, arson, etc. were found Apparently, not even the Supreme Court then was of one mind in debunking the
by the fiscal to have been committed as a necessary means to commit rebellion, theory being advanced by the petitioners in this case, some of whom were also
or in furtherance thereof. Thus, the fiscal filed an information for rebellion the petitioners in the Enrile case. Nevertheless, we held in Enrilethat the
alleging those common crimes as a necessary means of committing the offense Information filed therein properly charged an offense — that of simple rebellion
charged under the second part of Article 48, RPC. — 29 and thereupon ordered the remand of the case to the trial court for the
prosecution of the named accused 30 in the Information therein. Following this
We, however, find no occasion to apply the Hernandez ruling since as intimated lead, the Information against Adaza in Criminal Case No. Q-90-11855 was not
above, the crimes of murder and frustrated murder in this case were absolutely quashed, but was instead treated likewise as charging the crime of simple
unnecessary to commit rebellion although they were the natural consequences of rebellion.
the unlawful bombing. Hence, the applicable provision is the first part of Article
48 of the RPC. 25 A doubtful or difficult question of law may become the basis of good faith and,
in this regard, the law always accords to public officials the presumption of good
While the Supreme Court in the case of Enrile v. Salazar, 26 addressing the issue faith and regularity in the performance of official duties. 31 Any person who
of whether or not the Hernandez doctrine is still good law, in a 10-3 vote, did seeks to establish otherwise has the burden of proving bad faith or ill-motive.
not sustain the position espoused by the herein petitioners on the matter, three Here, since the petitioners were of the honest conviction that there was probable
justices 27 felt the need to re-study the Hernandez ruling in light of present-day cause to hold respondent Adaza for trial for the crime of rebellion with murder
developments, among whom was then Chief Justice Marcelo Fernan who wrote and frustrated murder, and since Adaza himself, through counsel, did not allege
a dissenting opinion in this wise: in his complaint lack of probable cause, we find that the petitioners cannot be
held liable for malicious prosecution. Needless to say, probable cause was not
wanting in the institution of Criminal Case No. Q-90-11855 against Adaza.
I am constrained to write this separate opinion on what seems to be a rigid
adherence to the 1956 ruling of the Court. The numerous challenges to the
doctrine enunciated in the case of People vs. Hernandez, 99 Phil. 515 (1956), As to the requirement that the prosecutor must be impelled by malice in bringing
should at once demonstrate the need to redefine the applicability of said doctrine the unfounded action, suffice it to state that the presence of probable cause
so as to make it conformable with accepted and well-settled principles of signifies, as a legal consequence, the absence of malice. 32 At the risk of being
criminal law and jurisprudence. repetitious, it is evident in this case that petitioners were not motivated by
malicious intent or by a sinister design to unduly harass private respondent, but
To my mind, the Hernandez doctrine should not be interpreted as an all- only by a well-founded belief that respondent Adaza can be held for trial for the
embracing authority for the rule that all common crimes committed on the crime alleged in the information.
occasion, or in furtherance of, or in connection with, rebellion are absorbed by
the latter. To that extent, I cannot go along with the view of the majority in the All told, the complaint, dated July 11, 1990, filed by Adaza before Branch 100
instant case that "Hernandez remains binding doctrine operating to prohibit the of the Regional Trial Court against the petitioners does not allege facts sufficient
complexing of rebellion with any other offense committed on the occasion to constitute a cause of action for malicious prosecution. Lack of cause of action,
thereof, either as a means necessary to its commission or as an unintended effect as a ground for a motion to dismiss under Section 1 (g), Rule 16 of the Revised
of an activity that constitutes rebellion" (p. 9, Decision). Rules of Court, must appear on the face of the complaint itself, meaning that it
must be determined from the allegations of the complaint and from none
other. 33 The infirmity of the complaint in this regard is only too obvious to have
The Hernandez doctrine has served the purpose for which it was applied by the
escaped respondent judge's attention. Paragraph 14 of the complaint which states:
Court in 1956 during the communist-inspired rebellion of the Huks. The changes
in our society in the span of 34 years since then have far-reaching effects on the
xxx xxx xxx RAFAEL PATRICIO, petitioner,
vs. THE HONORABLE OSCAR LEVISTE, JUDGE, CFI CAPIZ, BRANCH
14. The malicious prosecution, nay persecution, of plaintiff for a non-existent
crime had severely injured and besmirched plaintiff's name and reputation and
II and BIENVENIDO BACALOCOS, respondents.
forever stigmatized his stature as a public figure, thereby causing him extreme
physical suffering, serious anxiety, mental anguish, moral shock and social Petition for review on certiorari of the Order 1 of the Court of First Instance of
humiliation. 34 Capiz, Branch II, on the motion for reconsideration flied by private respondent
Bienvenido Bacalocos, dismissing the complaint for damages against the latter,
is a mere conclusion of law and is not an averment or allegation of ultimate facts. docketed as Civil Case No. V-3937.
It does not, therefore, aid in any wise the complaint in setting forth a valid cause
of action against the petitioners. Petitioner Rafael Patricio, an ordained Catholic priest, and actively engaged in
social and civic affairs in Pilar, Capiz, where he is residing, was appointed
It is worthy to note that this case was elevated to the public respondent Court of Director General of the 1976 Religious and Municipal Town Fiesta of Pilar,
Appeals and now to this Court because of respondent Judge Macli-ing's denial Capiz.
of petitioners' motion to dismiss the Adaza complaint. The ordinary procedure,
as a general rule, is that petitioners should have filed an answer, go to trial, and On 16 May 1976 at about 10:00 o'clock in the evening, while a benefit dance
if the decision is adverse, reiterate the issue on appeal. 35 This general rule, was on-going in connection with the celebration of the town fiesta, petitioner
however, is subject to certain exceptions, among which are, if the court denying together with two (2) policemen were posted near the gate of the public
the motion to dismiss acts without or in excess of jurisdiction or with grave auditorium to check on the assigned watchers of the gate. Private respondent
abuse of discretion, in which case certiorari under Rule 65 may be availed of. Bienvenido Bacalocos, President of the Association of Barangay Captains of
The reason is that it would be unfair to require the defendants (petitioners in this Pilar, Capiz and a member of the Sangguniang Bayan, who was in a state of
case) to undergo the ordeal and expense of trial under such circumstances, drunkenness and standing near the same gate together with his companions,
because the remedy of appeal then would then not be plain and struck a bottle of beer on the table causing an injury on his hand which started to
adequate. 36 Judge Macli-ing committed grave abuse of discretion in denying bleed. Then, he approached petitioner in a hostile manner and asked the latter if
petitioners' motion to dismiss the Adaza complaint, and thus public respondent he had seen his wounded hand, and before petitioner could respond, private
Court of Appeals should have issued the writ of certiorari prayed for by the respondent, without provocation, hit petitioner's face with his bloodied hand. As
petitioners and annulled the February 8, 1991 and May 14, 1991 Orders of a consequence, a commotion ensued and private respondent was brought by the
respondent Judge. It was grievous error on the part of the court a quo not to have policemen to the municipal building. 2
done so. This has to be corrected. Respondent Adaza's baseless action cannot be
sustained for this would unjustly compel the petitioners to needlessly go through As a result of the incident, a criminal complaint for "Slander by Deed was flied
a protracted trial and thereby unduly burden the court with one more futile and by petitioner with the Municipal Trial Court of Pilar, Capiz, docketed as
inconsequential case. Criminal Case No. 2228, but the same was dismissed. 3 Subsequently, a
complaint for damages was filed by petitioner with the court a quo. In a
WHEREFORE, the petition is GRANTED. The Resolutions of respondent Court decision 4 dated 18 April 1978, the court ruled in favor of herein petitioner (as
of Appeals dated January 31, 1992 and September 2, 1992 affirming the complainant), holding private respondent liable to the former for moral damages
February 8, 1991 and May 14, 1991 Orders of respondent Judge George C. as a result of the physical suffering, moral shock and social humiliation caused
Macli-ing are all hereby NULLIFIED AND SET ASIDE. Respondent Judge is by private respondent's act of hitting petitioner on the face in public. The
DIRECTED to take no further action on Civil Case No. Q-90-6073 except to dispositive part of the decision reads as follows:
DISMISS the same.
WHEREFORE, the Court orders defendant to pay plaintiff the damages as
SO ORDERED. follows:
a) Moral damages of P10,000.00
b) Exemplary damages, P1,000.00 and
G.R. No. L-51832 April 26, 1989 c) Attorney's fees, P2,000.00.
SO ORDERED. 5
On 9 June 1978, petitioner filed a motion for execution of judgment, alleging Not satisfied with said order, petitioner filed the petition at bar contending that
that the 18 April 1978 decision had become final and executory after the lapse of no copy of the Motion for consideration was served upon petitioner and no proof
thirty (30) days from receipt thereof by private respondent, without any motion of service as well as notice of hearing were attached to said motion when filed
for reconsideration or appeal having been filed. 6 However, said motion was with the court a quo; thus, the motion for reconsideration did not interrupt the
denied by the court a quo on the ground that there was a pending motion for running of the period to appeal. The alleged mailing of a copy of said motion by
reconsideration filed by private respondent. 7 Subsequently, private respondent ordinary mail did not, according to petitioner, cure the defect. Petitioner further
filed a supplemental motion for reconsideration 8 and the court ordered argues that respondent's admission that he slapped herein petitioner in public
petitioner to file a reply (opposition) thereto. 9 In compliance, petitioner flied a causing him physical suffering and social humiliation, entitles the latter to moral
reply (opposition) to the motion for reconsideration, alleging that the filing of damages. Actual and compensatory damages need not be proven before an
said motion and supplement thereto was without notice to the adverse party and award of moral damages can be granted, so petitioner contends.
proof of service, hence, the decision sought to be reconsidered had already
become final and unappealable. 10 On the other hand, private respondent claims that the order of the court a
quo apprising petitioner of the motion for reconsideration filed by private
Private respondent filed a rejoinder (reply) and a manifestation stating that respondent and requiring the former to file a reply (opposition) thereto, had
petitioner was duly served with a copy of said motion for reconsideration cured the defect of lack of proof of service and notice of hearing of said motion
by ordinary mail, attaching thereto the affidavit of Godofredo Almazol who for reconsideration; and that the award of moral damages to petitioner is without
stated that he mailed the envelope to counsel for herein petitioner. 11 The basis for lack of proof of bad faith on the part of private respondent.
court a quo then scheduled the motion for oral argument and the parties were
allowed to extensively argue their respective causes. With respect to the alleged lack of service on petitioner of a copy of the motion
and notice of hearing and failure to attach to the motion proof of service thereof,
On 3 August 1979, an order 12 of dismissal of the petitioner's complaint was the general rule is that notice of motion is required where a party has a right to
issued by the trial court, thus — resist the relief sought by the motion and principles of natural justice demand
that his rights be not affected without an opportunity to be heard. 13
ORDER
In the case at bar, a copy of the motion for reconsideration was served upon
This is a motion for reconsideration of the decision of this Court dated April 18, petitioner, although service was effected through ordinary mail and not by
1978, filed by counsel for defendant on May 18, 1978. registered mail as reqired by the rules. But, petitioner was duly given the full
opportunity to be heard and to argue his case when the court a quo required him
In view of the recent trend in the Supreme Court to liberally construe the Rules, to file a reply (opposition) to the motion for reconsideration and subsequently
set the motion for oral argument.
and in view of Section 2, Rule 1, the Court resolves to give due course to the
motion.
What the law really eschews is not the lack of previous notice of hearing but the
Upon review of the facts of the case, it appears and the Court finds merit in the lack of opportunity to be heard. It has been held that parties should not rely on
motion for reconsideration, particularly noting that there is indeed no showing of mere technicalities which, in the interest of justice, may be relaxed. 14The rifles
of procedure should be viewed as mere tools designed to facilitate the attainment
compensatory damages being proved.
of justice. Their strict and rigid application, which would result in technicalities
that tend to frustrate rather than promote substantial justice, must be
WHEREFORE, tills Court reconsiders its decision to conform to the facts and avoided. 15 Moreover, the case should, as much as possible, be decided on the
the law, namely, that moral and exemplary damages, in order to merit, the merits and not merely on technicalities.
plaintiff ought to have proven actual or compensatory damages.
As to the petitioner's claim for moral damages, we find the same to be
WHEREFORE, this case is ordered dismissed. meritorious. There is no question that moral damages may be recovered in cases
where a defendant's wrongful act or omission has caused the complainant
SO ORDERED. physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation and similar
injury. 16 An award of moral damages is allowed in cases specified or ... . Fully sensible that there are countless gaps in the statutes, which leave so
analogous to those provided in Article 2219 of the Civil Code, to wit: many victims of moral wrongs helpless, even though they have actually suffered
material and moral injury, the Commission has deemed it necessary, in the
ART. 2219. Moral damages may be recovered in the following and analogous interest of justice, to incorporate in the proposed Civil Code the following rule:
cases
(1) A criminal offense resulting in physical injuries; ART. 23. Any person who wilfully causes loss or injury to another in a manner
(2) Quasi-delicts causing physical injuries; that is contrary to morals, good customs or public policy shall compensate the
(3) Seduction, abduction, rape, or other lascivious acts. latter for the damage.
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest; xxx xxx xxx 18
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
In addition to the award of moral damages, exemplary or corrective damages
(8) Malicious prosecution; may be imposed upon herein private respondent by way of example or
(9) Acts mentioned in article 309; correction for the public good. 19 Exemplary damages are required by public
(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.
policy to suppress the wanton acts of the offender. They are an antidote so that
xxx xxx xxx
the poison of wickedness may not run through the body politic. 20 The amount
of exemplary damages need not be proved where it is shown that plaintiff is
Private respondent's contention that there was no bad faith on his part in entitled to either moral, temperate or compensatory damages, as the case may
slapping petitioner on the face and that the incident was merely accidental is not be, 21 although such award cannot be recovered as a matter of right. 22
tenable. It was established before the court a quo that there was an existing feud
between the families of both petitioner and private respondent and that private
In cases where exemplary damages are awarded to the injured party, attorney's
respondent slapped the petitioner without provocation in the presence of several
fees are also recoverable. 23
persons.
WHEREFORE, the petition is GRANTED. The order appealed from, dated 3
The act of private respondent in hitting petitioner on the face is contrary to
August 1979, is REVERSED and the decision of the court a quo dated 18 April
morals and good customs and caused the petitioner mental anguish, moral shock,
1978 is hereby REINSTATED. With costs against private respondent.
wounded feelings and social humiliation. Private respondent has to take full
responsibility for his act and his claim that he was unaware of what he had done
to petitioner because of drunkenness is definitely no excuse and does not relieve SO ORDERED.
him of his liability to the latter.

Pursuant to Art. 21 of the Civil Code in relation to par. (10) of Art. 2219 of the
same Code, "any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall G.R. No. L-48250 December 28, 1979
compensate the latter for the damage." GRAND UNION SUPERMARKET, INC. and NELIA SANTOS
FANDINO, petitioners,
The fact that no actual or compensatory damage was proven before the trial vs. JOSE J. ESPINO JR., and THE HONORABLE COURT OF
court, does not adversely affect petitioner's right to recover moral damages.
Moral damages may be awarded in appropriate cases referred to in the chapter
APPEALS, respondents.
on human relations of the Civil Code (Articles 19 to 36), without need of proof
that the wrongful act complained of had caused any physical injury upon the This is a petition tor certiorari by way of appeal from the decision of the Court
complainant. 17 It is clear from the report of the Code Commission that the of Appeals 1 dated September 26, 1977 rendered in CA-G.R. No. 55186-R
reason underlying an award of damages under Art. 21 of the Civil Code is to entitled "Jose J. Espino, Jr., plaintiff-appellant. versus Grand Union
compensate the injured party for the moral injury caused upon his person, thus Supermarket, Inc. and Nelia Santos-Fandino, defendants-appellees," the
— dispositive portion of which states;
WHEREFORE, the appealed judgment is hereby reversed and plaintiff's name, age, residence and other personal data. Plaintiff was asked to
set aside. Defendants are ordered to pay plaintiff-jointly and make a brief statement, and on the sheet of paper or "Incident Report" he wrote
severally, the sum of Seventy-Five Thousand Pesos down the following: "While talking to my aunt's maid with my wife, I put this
(P75,000.00) by way of moral damages. Twenty-Five item in my shirt pocket. I forgot to check it out with my wife's items" (Exhibit
Thousand Pesos (P25,000.00) as exemplary damages, and Five A). Meanwhile, the plaintiff's wife joined him and asked what had taken him so
Thousand Pesos (P5,000.00) as attorney's fee, Costs of both long.
instances shall be taxed against the defendant defendants.
"The guard who had accosted plaintiff took him back inside the supermarket in
The facts of the case are as stated in the decision of the respondent court to wit: the company of his wife. Plaintiff and his wife were directed across the main
entrance to the shopping area, down the line of check-out counters, to a desk
"Upon the evidence, and from the findings of the lower court, it appears that in beside the first checkout counter. To the woman seated at the desk, who turned
the morning of August 22, 1970, plaintiff Jose J. Espino. Jr., a civil engineer and out to be defendant Nelia Santos-Fandino, the guard presented the incident
an executive of Procter and Gamble Philippines, Inc., and his wife and their two report and the file, Exhibit B. Defendant Fandino read the report and addressing
daughters went to shop at the defendants' South Supermarket in Makati. While the guard remarked: "Ano, nakaw na naman ito" (p. 22, Id.). Plaintiff explained
his wife was shopping at the groceries section, plaintiff browsed around the and narrated the incident that led to the finding of the file in his pocket, telling
other parts of the market. Finding a cylindrical "rat tail" file which he needed in Fandino that he was going to pay for the file because he needed it. But this
his hobby and had been wanting to buy, plaintiff picked up that item from one of defendant replied: "That is all they say, the people whom we cause not paying
the shelves. He held it in his hand thinking that it might be lost, because of its for the goods say... They all intended to pay for the things that are found to
tiny size, if he put it in his wife's grocery cart. In the course of their shopping, them." (p. 23, Id). Plaintiff objected and said that he was a regular customer of
plaintiff and his wife saw the maid of plaintiff's aunt. While talking to this maid, the supermarket.
plaintiff stuck the file into the front breast pocket of his shirt with a good part of
the merchandise exposed. "Extracting a P5.00 bill from his pocket, plaintiff told Fandino that he was
paying for the file whose cost was P3.85. Fandino reached over and took the
"At the check-out counter, the plaintiff paid for his wife's purchases which P5.00 bill from plaintiff with these words: "We are fining you P5.00. That is
amounted to P77.00, but he forgot to pay for the file. As he was leaving by the your the fine." Plaintiff was shocked. He and his wife objected vigorously that
exit of the supermarket on his way to his car, carrying two bags of groceries and he was not a common criminal, and they wanted to get back the P5.00. But
accompanied by his wife and two daughter, plaintiff was approached by a Fandino told them that the money would be given as an incentive to the guards
uniformed guard of the supermarket who said: "Excuse me, Mr., I think you who apprehend pilferers. People were milling around them and staring at the
have something in your pocket which you have not paid for." (p. 5, tsn, Aug. 13, plaintiff. Plaintiff gave up the discussion. He drew a P50.00 bill and took back
1971), pointing to his left front breast pocket. Suddenly reminded of the file, the file. Fandino directed him to the nearest check-out counter where he had to
plaintiff apologized thus: "I am sorry," and he turned back toward the cashier to fall in line. The people who heard the exchange of words between Fandino and
pay for the file. But the guard stopped him and led him instead toward the rear plaintiff continued to stare at him. At the trial, plaintiff expressed his
of the supermarket. The plaintiff protested but the guard was firm saying: "No, embarrassment and humiliation thus: " I felt as though I wanted to disappear into
Mr., please come with me. It is the procedure of the supermarket to bring people a hole on the ground" (p. 34, Id.). After paying for the file, plaintiff and his wife
that we apprehend to the back of the supermarket" (p. 8, Ibid). The time was walked as fast as they could out of the supermarket. His first impulse was to go
between 9 and 10 o'clock. A crowd of customers on their way into the back to the supermarket that night to throw rocks at its glass windows. But
supermarket saw the plaintiff being stopped and led by a uniformed guard reason prevailed over passion and he thought that justice should take its due
toward the rear of the supermarket. Plaintiff acquiesced and signaled to his wife course.
and daughters to wait.
"Plaintiff was certain during the trial that when he signed the incident report,
"Into a cubicle which was immediately adjacent to the area where deliveries to Exhibit A, inside the cubicle at the back of the supermarket only his brief
the supermarket were being made, the plaintiff was ushered. The guard directed statement of the facts (Exhibit A-2), aside from his name and personal
him to a table and gave the file to the man seated at the desk. Another man stood circumstances, was written thereon. He swore that the following were not in the
beside the plaintiff. The man at the desk looked at the plaintiff and the latter incident report at, the time he signed it:
immediately explained the circumstances that led to the finding of the file in his
possession. The man at the desk pulled out a sheet of paper and began to ask Exhibit A-I which says opposite the stenciled word SUBJECT "Shoplifting"
Exhibit A-3 which says opposite the stenciled words Action Taken: Released by Assuming arguendo that petitioners are hable for moral and exemplary damages,
Mrs. Fandino after paying the item. the award of P75,000.00 for moral damages and P25,000.00 for exemplary
damages by the respondent Court of Appeals is not legally justified and/or is
Exhibit A-4 which says opposite the stenciled words Remarks Noted: "Grd. grossly excessive in the premises.
Ebreo requested Grd. Paunil to apprehend subject shoplifter.
III
Private respondent's complaint filed on October 8, 1970 is founded on Article 21
in relation to Article 2219 of the New Civil Code and prays for moral damages, The award of P5,000.00 for attorney's fees by the respondent
exemplary damages, attorney s fees and 'expenses of litigation, costs of the suit Court of Appeals is unjustified and unwarranted under Article
and the return of the P5.00 fine. After trial, the Court of First Instance of Pasig, 2199 of the Civil Code.
Rizal, Branch XIX dismissed the complaint, Interposing the appeal to the Court
of Appeals, the latter reversed and set aside the appealed judgment, granting and We agree with the holding of the respondent appellate court that "the evidence
damages as earlier stated. sustains the court's finding that the plaintiff had absolutely no intention to steal
the file." The totality of the facts and circumstances as found by the Court of
Not satisfied with the decision of the respondent court, petitioners instituted the Appeals unerringly points to the conclusion that private respondent did not
present petition and submits the following grounds and/or assignment of errors, intend to steal the file and that is act of picking up the file from the open shelf
to wit: was not criminal nor done with malice or criminal intent for on the contrary, he
took the item with the intention of buying and paying for it.
I
This Court needs only to stress the following undisputed facts which strongly
Respondent Court of Appeals erred in awarding moral and exemplary damages and convincingly uphold the conclusion that private respondent was not
to the respondent Espino under Articles 19 and 21 in relation to Article 2219 of "shoplifting." Thus, the facts that private respondent after picking the cylindrical
the Civil Code, considering that — "rat-tail" file costing P3.85 had placed it inside his left front breast pocket with a
good portion of the item exposed to view and that he did not conceal it in his
person or hid it from sight as well as the fact that he paid the purchases of his
A. Respondent Espino was guilty of theft;
wife amounting to P77.00 at the checkout counter of the Supermarket, owed that
he was not acting suspiciously or furtively. And the circumstance that he was
B. Petitioners legitimately exercised their right of defense of property within the with his family consisting of his wife Mrs. Caridad Jayme Espino, and their two
context of Article 429 of the Civil Code negating the application of Articles 19 daughters at the time negated any criminal intent on his part to steal. Moreover,
and 21 of the same Code; when private respondent was approached by the guard of the Supermarket as he
was leaving by the exit to his car who told him, "Excuse me, Mr., I think you
C. Petitioners acted upon probable cause in stopping and investigating have something in your pocket which you have not paid for," Espino,
respondent Espino for shoplifting and as held in various decisions in the United immediately apologized and answered, "I am sorry," which indicated his sincere
States on shoplifting, a merchant who acts upon probable cause should not be apology or regrets. He turned back towards the cashier to pay for the file which
held liable in damages by the suspected shoplifter; proved his honesty sincerity and good faith in buying the item, and not to
shoplift the same. His brief statement on the sheet of paper called the Incident
D. Petitioners did not exercise their right maliciously, wilfully or in bad faith; Report where private respondent wrote the following: "While talking to my
and/or aunt's maid with my wife, I put this item in in my shirt pocket. I forgot to check
it out with my wife's item," was an instant and contemporaneous explanation of
E. The proximate cause of respondent Espino's alleged injury or suffering was the incident.
his own negligence or forgetfulness; petitioners acted in good faith.
Considering further the personal circumstances of the private respondent. his
II education, position and character showing that he is a graduate Mechanical
Engineer from U.P. Class 1950, employed as an executive of Proctor & Gamble
Phils., Inc., a corporate manager incharge of motoring and warehousing therein;
honorably discharged from the Philippine Army in 1946; a Philippine are found to them." Private respondent objected and said that he was a regular
government pensionado of the United States for six months; member of the customer of the Supermarket.
Philippine veterans Legion; author of articles published in the Manila Sunday
Times and Philippines Free Press; member of the Knights of Columbus, Council The admission of Fandino that she required private respondent to pay a fine of
No. 3713; son of the late Jose Maria Espino, retired Minister, Department of P5.00 and did in fact take the P5.00 bill of private respondent tendered by the
Foreign Affairs at the Philippine Embassy Washington, We are fully convinced, latter to pay for the file, as a fine which would be given as an incentive to the
as the trial and appellate courts were, that private respondent did not intend to guards who apprehend pilferers clearly proved that Fandino branded private
steal the article costing P3.85. Nothing in the records intimates or hints respondent as a thief which was not right nor justified.
whatsoever that private respondent has had any police record of any sort much
less suspicion of stealing or shoplifting.
The testimony of the guard that management instructed them to bring the
suspected customers to the public area for the people to see those kind of
We do not lay down here any hard-and-fast rule as to what act or combination of customers in order that they may be embarassed (p. 26, tsn, Sept. 30, 1971); that
acts constitute the crime of shoplifting for it must be stressed that each case must management wanted "the customers to be embarrassed in public so that they will
be considered and adjudged on a case-to-case basis and that in the determination not repeat the stealing again" (p. 2, tsn, Dec. 10, 1971); that the management
of whether a person suspected of shoplifting has in truth and in fact committed asked the guards "to bring these customers to different cashiers in order that they
the same, all the attendant facts and circumstances should be considered in their will know that they are pilferers" (p. 2, Ibid.) may indicate the manner or pattern
entirety and not from any single fact or circumstance from which to impute the whereby a confirmed or self-confessed shoplifter is treated by the Supermarket
stigma of shoplifting on any person suspected and apprehended therefor. management but in the case at bar, there is no showing that such procedure was
taken in the case of the private respondent who denied strongly and vehemently
We likewise concur with the Court of Appeals that "(u)pon the facts and under the charge of shoplifting.
the law, plaintiff has clearly made the cause of action for damages against the
defendants. Defendants wilfully caused loss or injury to plaintiff in a manner Nonetheless, the false accusation charged against the private respondent after
that was contrary to morals, good customs or public policy, making them detaining and interrogating him by the uniformed guards and the mode and
amenable to damages under Articles 19 and 21 in relation to Article 2219 of the manner in which he was subjected, shouting at him, imposing upon him a fine,
Civil Code." 2 threatening to call the police and in the presence and hearing of many people at
the Supermarket which brought and caused him humiliation and embarrassment,
That private respondent was falsely accused of shoplifting is evident. The sufficiently rendered the petitioners liable for damages under Articles 19 and 21
Incident Report (Exhibit A) with the entries thereon under Exhibit A-1 which in relation to Article 2219 of the Civil Code. We rule that under the facts of the
says opposite the stenciled word SUBJECT: "Shoplifting," Exhibit A-3 which case at bar, petitioners wilfully caused loss or injury to private respondent in a
says opposite the stenciled words Action Taken: Relesed by Mrs. Fandino after manner that was contrary to morals, good customs or public policy. It is against
paying the item," Exhibit A-4 which says opposite the stenciled words Remarks morals, good customs and public policy to humiliate, embarrass and degrade the
Noted: Grd. Ebreo requested Grd. Paunil to apprehend subject shoplifter," dignity of a person. Everyone must respect the dignity, personality, privacy and
established the opinion, judgment or thinking of the management of petitioner's peace of mind of his neighbors and other persons (Article 26, Civil Code). And
supermarket upon private respondent's act of picking up the file. ln plain words, one must act with justice, give everyone his due and observe honesty and good
private respondent was regarded and pronounced a shoplifter and had committed faith (Article 19, Civil Code).
"shoplifting."
Private respondent is entitled to damages but We hold that the award of Seventy-
We also affirm the Court of Appeals' finding that petitioner Nelia Santos Five Thousand Pesos (P75,000.00) for moral damages and Twenty-Five
Fandino, after reading the incident report, remarked the following: "Ano, nakaw Thousand Pesos (P25,000.00, for exemplary damages is unconscionable and
na naman ito". Such a remark made in the presence of private respondent and excessive.
with reference to the incident report with its entries, was offensive to private
respondent's dignity and defamatory to his character and honesty. When Espino While no proof of pecuniary loss is necessary in order that moral, nominal,
explained that he was going to pay the file but simply forgot to do so, Fandino temperate, liquidated or exemplary damages may be adjudicated, the assessment
doubted the explanation. saying: "That is all what they say, the people whom we of such damages, except liquidated ones, is left to the discretion of the court,
caught not paying for the goods say... they all intended to pay for the things that according to the circumstances of each case (Art. 2216, New Civil Code). In the
case at bar, there is no question that the whole incident that befell respondent owner or lawful possessor of a thing has a right to exclude any person from the
had arisen in such a manner that was created unwittingly by his own act of enjoyment and disposal thereof and for this purpose, he may use such force as
forgetting to pay for the file. It was his forgetfullness in checking out the item may be reasonably necessary to repel or prevent an actual or threatened unlawful
and paying for it that started the chain of events which led to his embarassment physical invasion or usurpation of his property. And since a person who acts in
and humiliation thereby causing him mental anguish, wounded feelings and the fulfillment of a duty or in the lawful exercise of a right or office exempts
serious anxiety. Yet, private respondent's act of omission contributed to the him from civil or criminal liability, petitioner may not be punished by imposing
occurrence of his injury or loss and such contributory negligence is a factor exemplary damages against him. We agree that petitioners acted upon probable
which may reduce the damages that private respondent may recover (Art. 2214, cause in stopping and investigating private respondent for taking the file without
New Civil Code). Moreover, that many people were present and they saw and paying for it, hence, the imposition of exemplary damages as a warning to others
heard the ensuing interrogation and altercation appears to be simply a matter of by way of a deterrent is without legal basis. We, therefore, eliminate the grant of
coincidence in a supermarket which is a public place and the crowd of onlookers, exemplary damages to the private respondent.
hearers or bystanders was not deliberately sought or called by management to
witness private respondent's predicament. We do not believe that private In the light of the reduction of the damages, We hereby likewise reduce the
respondent was intentionally paraded in order to humiliate or embarrass him original award of Five Thousand Pesos (P5,000.00) as attorney's fees to Two
because petitioner's business depended for its success and patronage the good Thousand Pesos (P2,000.00).
will of the buying public which can only be preserved and promoted by good
public relations.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment of the Court of
Appeals is hereby modified. Petitioners are hereby ordered to pay, jointly and
As succinctly expressed by Mr. Justice J. B. L. Reyes in his concurring and severally, to private respondent moral damages in the sum of Five Thousand
dissenting opinion in Pangasinan Transportation Company, Inc, vs. Legaspi, 12 Pesos (P5,000.00) and the amount of Two Thousand Pesos (P2,000.00) as and
SCRA 598, the purpose of moral damages is essentially indemnity or reparation, for attorney's fees; and further, to return the P5.00 fine to private respondent. No
both punishment or correction. Moral damages are emphatically not intended to costs. SO ORDERED.
enrich a complainant at the expense of a defendant; they are awarded only to
enable the injured party to obtain means, diversion or amusements that will
serve to alleviate the moral suffering he has undergone, by reason of the OTHER TORTS
defendant's culpable action. In other words, the award of moral damages is G.R. No. L-14986 July 31, 1962
aimed at a restoration, within the limits of the possible, of the spiritual status CORNELIO AMARO and JOSE AMARO, plaintiffs-appellants,
quo ante and, it must be proportionate to the suffering inflicted.
vs. AMBROSIO SUMANGUIT, defendant-appellee.
In Our considered estimation and assessment, moral damages in the amount of
Appellants filed suit for damages in the Court of First Instance of Negros
Five Thousand Pesos (P5,000.00) is reasonable and just to award to private
Occidental against the chief of police of the City of Silay. Although not
respondent.
specifically alleged in the complaint, it is admitted by both parties, as shown in
their respective briefs, that the action is predicated on Articles 21 and/or 27 of
The grant of Twenty-Five Thousand Pesos (P25,000.00) as exemplary damages the Civil Code, which provide:
is unjustified. Exemplary or corrective damages are imposed by way of example
or correction for the public good, in addition to the moral, temperate, liquidated
ART. 21. Any person who wilfully causes loss or injury to another in a
or compensatory damages (Art. 2229, New Civil Code). Exemplary damages
manner that is contrary to morals, good customs or public policy shall
cannot be recovered as a matter of right; the court will decide whether or not
compensate the latter for the damage.
they could be adjudicated (Art. 2223, New Civil Code). Considering that
exemplary damages are awarded for wanton acts, that they are penal in character
granted not by way of compensation but as a punishment to the offender and as a ART. 27. Any person suffering material or moral loss because a public
warning to others as a sort of deterrent, We hold that the facts and circumstances servant or employee refuses or neglects, without just cause, to perform
of the case at bar do not warrant the grant of exemplary damages. his official duty may file an action for damages and other relief against
the latter, without prejudice to any disciplinary administrative action
that may be taken.
Petitioners acted in good faith in trying to protect and recover their property, a
right which the law accords to them. Under Article 429, New Civil Code, the
The complaint was dismissed upon appellee's motion in the court below on the Professor Sunderland once said "The real test of good pleading under the new
ground that it does not state facts sufficient to constitute a cause of action. The rules is whether the information given is sufficient to enable the party to plead
only question now before us refers to correctness of the order dismissal. and prepare for trial. A legal conclusion may serve the purpose of pleading as
well as anything else if it gives the proper information. If the party wants more
The pertinent allegations in the complaint are that on October 5, 1958 appellant he may ask for more details in regard to the particular matter that is stated too
Jose Amaro was assaulted and shot at near the city government building of Silay; generally (Vol. XIII, Cincinnati Law Review, January 1939.) Co Tiamco vs.
that the following day he, together with his father (Cornelio Amaro) and his Diaz, 75 Phil. 672.
witnesses, "went to the office of the defendant but instead of obtaining
assistance to their complaint they were harassed and terrorized;" that in view At any rate, if respondent's complaint, which was clear enough, had
thereof they "gave up and renounced their right and interest in the prosecution of created confusion in petitioner's mind as to the foundation of her cause
the crime . . . .;" that upon advice of the City Mayor given to appellee an of action, then it should have moved for a more definite statement of
investigation (of said crime) was conducted and as a result the city attorney of the same before the trial. De Leon Brokerage Co., Inc. vs. The Court of
Silay was about to file or had already filed an information for illegal discharge Appeals, et al., G.R. No. L-15247, Feb. 28, 1962.
of firearm against the assailant; and that "having finished the investigation of the
crime complained of, the defendant chief of police is now harassing the The fact, cited by the court below in the order subject to review, that appellants
plaintiffs in their daily work, ordering them thru his police to appear in his office have another recourse (in connection with the crime of illegal discharge of
when he is absent, and he is about to order the arrest of the plaintiffs to take their firearm supposedly committed against one of them) as by filing their complaint
signatures in prepared affidavits exempting the police from any dereliction of directly with the city attorney of Silay or by lodging an administrative charge
duty in their case against the perpetrator of the crime." against appellee herein, does not preclude this action for damages under Article
27 of the Civil Code and hence does not justify its dismissal.
We are of the opinion that the facts set out constitute an actionable dereliction
on appellee's part in the light of Article 27 of the Civil Code. That appellants THE ORDER APPEALED from is set aside and the case is remanded to the
were "harrased and terrorized" may be a conclusion of law and hence improperly Court of origin for further proceedings. Costs against appellee.
pleaded. Their claim for relief, however, is not based on the fact of harassment
and terrorization but on appellee's refusal to give them assistance, which it was
his duty to do as an officer of the law. The requirement under the aforesaid
provision that such refusal must be "without just cause" is implicit in the context
of the allegation. The statement of appellee's dereliction is repeated in a
subsequent paragraph of the complaint, where it is alleged that "he is about to
order the arrest of the plaintiffs" to make them sign affidavits of exculpation in
favor of the policemen.

The complaint is, without doubt, imperfectly drafted. It suffers from vagueness G.R. No. L-46061 November 14, 1984
and generalization. But all that the Rules require is that there be a showing by a
statement of ultimate facts, that the plaintiff his a right and that such right has
ST. LOUIS REALTY CORPORATION, petitioner,
been violated by the defendant. An action should not be dismissed upon mere vs. COURT OF APPEALS and CONRADO J. ARAMIL, respondents.
ambiguity, indefiniteness or uncertainty, for these are not grounds for a motion
to dismiss, under Rule 8, but rather for a bill of particulars according to Rule 16. This case is about the recovery of damages for a wrongful advertisement in
Moran, Comments on the Rules of Court, 1957 ed., Vol. I, p. 111. In two cases the Sunday Times where Saint Louis Realty Corporation misrepresented that the
decided by this Court, it was observed: house of Doctor Conrado J. Aramil belonged to Arcadio S. Arcadio.

Under the new Rules of Court, an action cannot be dismissed upon the ground St. Louis Realty caused to be published with the permission of Arcadio S.
that the complaint is vague, ambiguous, or indefinite (see Rule 8, section 1), Arcadio (but without permission of Doctor Aramil) in the issue of the Sunday
because the defendant, in such case, may ask for more particulars (Rule 16) or Times of December 15, 1968 an advertisement with the heading "WHERE THE
he may compel the plaintiff to disclose more relevant facts under the different HEART IS". Below that heading was the photograph of the residence of Doctor
methods of discovery provided by the Rules. (Rules 18, 20, 21, 22 and 23.)
Aramil and the Arcadio family and then below the photograph was the following The letter was received by Ernesto Magtoto, an officer of St. Louis Realty in
write-up: charge of advertising. He stopped publication of the advertisement. He contacted
Doctor Aramil and offered his apologies. However, no rectification or apology
Home is where the heart is. And the hearts of MR. AND MRS. ARCADIO S. was published.
ARCADIO and their family have been captured by BROOKSIDE HILLS. They
used to rent a small 2-bedroom house in a cramped neighborhood, sadly On February 20, 1969, Aramil's counsel demanded from St. Louis Realty actual,
inadequate and unwholesome for the needs of a large family. They dream(ed) of moral and exemplary damages of P110,000 (Exh. D). In its answer dated March
a more pleasant place free from the din and dust of city life yet near all facilities. 10, St. Louis Realty claimed that there was an honest mistake and that if Aramil
Plans took shape when they heard of BROOKSIDE HILLS. With thrift and so desired, rectification would be published in the Manila Times (Exh. 3).
determination, they bought a lot and built their dream house ... for P31,000. The
Arcadios are now part of the friendly, thriving community of BROOKSIDE It published in the issue of the Manila Times of March 18, 1969 a new
HILLS... a beautiful first-class subdivision planned for wholesome family living. advertisement with the Arcadio family and their real house. But it did not
publish any apology to Doctor Aramil and an explanation of the error.
The same advertisement appeared in the Sunday Times dated January 5, 1969.
Doctor Aramil a neuropsychiatrist and a member of the faculty of the U. E. On March 29, Aramil filed his complaint for damages. St. Louis Realty
Ramon Magsaysay Memorial Hospital, noticed the mistake. On that same date, published in the issue of the Manila Times of April 15, 1969 the following
he wrote St. Louis Realty the following letter of protest: "NOTICE OF RECTIFICATION" in a space 4 by 3 inches:

Dear Sirs: This will serve as a notice that our print ad 'Where the Heart is' which appeared
in the Manila Timesissue of March 18, 1969 is a rectification of the same ad that
This is anent to your advertisements appearing in the December 15, 1968 and appeared in the Manila Times issues rectification of the same ad that appeal of
January 5, 1969 issues of the Sunday Times which boldly depicted my house at December 15, 1968 and January 5, 1969 wherein a photo of the house of another
the above-mentioned address and implying that it belonged to another person. I Brookside Homeowner (Dr. Aramil-private respondent) was mistakenly used as
am not aware of any permission or authority on my part for the use of my house a background for the featured homeowner's the Arcadio family.
for such publicity.
The ad of March 18, 1969 shows the Arcadio family with their real house in the
This unauthorized use of my house for your promotional gain and much more background, as was intended all along.
the apparent distortions therein are I believe not only transgression to my
private property but also damaging to my prestige in the medical profession I Judge Jose M. Leuterio observed that St. Louis Realty should have immediately
have had invited in several occasions numerous medical colleagues, medical published a rectification and apology. He found that as a result of St. Louis
students and friends to my house and after reading your December 15 Realty's mistake, magnified by its utter lack of sincerity, Doctor Aramil suffered
advertisement some of them have uttered some remarks purporting doubts as to mental anguish and his income was reduced by about P1,000 to P1,500 a month.
my professional and personal integrity. Such sly remarks although in light vein Moreover, there was violation of Aramil's right to privacy (Art. 26, Civil Code).
as "it looks like your house," "how much are you renting from the Arcadios?", "
like your wife portrayed in the papers as belonging to another husband," etc.,
The trial court awarded Aramil P8,000 as actual damages, P20,000 as moral
have resulted in no little mental anguish on my part.
damages and P2,000 as attorney's fees. St. Louis Realty appealed to the Court of
Appeals.
I have referred this matter to the Legal Panel of the Philippine Medical
Association and their final advice is pending upon my submission of supporting
The Appellate Court affirmed that judgment, with Acting Presiding Justice
ownership papers.
Magno S. Gatmaitan as ponente, and Justices Sixto A. Domondon and Samuel F.
Reyes concurring.
I will therefore be constrained to pursue court action against your corporation
unless you could satisfactorily explain this matter within a week upon receipt of The Appellate Court reasoned out that St. Louis Realty committed an actionable
this letter.
quasi-delict under articles 21 and 26 of the Civil Code because the questioned
advertisements pictured a beautiful house which did not belong to Arcadio but to This is an appeal from the decision of the Regional Trial Court of Bangui, Ilocos
Doctor Aramil who, naturally, was annoyed by that contretemps. Norte, Branch 19, finding the accused guilty beyond reasonable doubt of murder,
qualified by treachery, as charged under Article 248 of the Revised Penal Code,
In this appeal, St. Louis Realty contends that the Appellate Court ignored certain as amended, to wit:
facts and resorted to surmises and conjectures. This contention is unwarranted.
The Appellate Court adopted the facts found by the trial court. Those factual WHEREFORE, the Court finds the three accused guilty beyond reasonable
findings are binding on this Court. doubt of murder, qualified by treachery, as charged, defined and penalized under
Article 248 of the Revised Penal Code, as amended, and applying Article 248 of
St. Louis Realty also contends that the decision is contrary to law and that the the Revised Penal Code hereby sentences them to reclusion perpetua, with all
case was decided in a way not in conformity with the rulings of this Court. It the accessory penalties provided by law, and further sentencing them to pay
argues that the case is not covered by article 26 which provides that "every jointly and solidarily —
person shall respect the dignity, personality, privacy and peace of mind of his
neighbors and other persons". "Prying into the privacy of another's residence" 1. The heirs of Jerry Agliam compensatory damages in the amount of FIFTY
and "meddling with or disturbing the private life or family relations of another" THOUSAND PESOS (P50,000.00), moral damages in the amount of TWENTY
and "similar acts", "though they may not constitute a criminal offense, shall THOUSAND PESOS (P20,000.00), and actual damages in the amount of
produce a cause of action for damages, prevention and other relief". THIRTY FIVE THOUSAND SEVEN HUNDRED FIFTY-FIVE PESOS
(P35,755.00), with interest;
The damages fixed by Judge Leuterio are sanctioned by Articles 2200, 2208 and
2219 of the Civil Code. Article 2219 allows moral damages for acts and actions 2. The heirs of the late Eduardo Tolentino, Sr., compensatory damages in the
mentioned in Article 26. As lengthily explained by Justice Gatmaitan, the acts amount of FIFTY THOUSAND PESOS (P50,000.00), moral damages in the
and omissions of the firm fan under Article 26. amount of TWENTY THOUSAND PESOS (P20,000.00), and actual damages in
the total amount of SIXTY-ONE THOUSAND SEVEN HUNDRED EIGHTY-
St. Louis Realty's employee was grossly negligent in mixing up the Aramil and FIVE PESOS (P61,785.00), with interest;
Arcadio residences in a widely circulated publication like the Sunday Times. To
suit its purpose, it never made any written apology and explanation of the mix- 3. Carmelo Agliam, actual damages in the amount of TWO THOUSAND AND
up. It just contented itself with a cavalier "rectification ". THREE PESOS AND FORTY CENTAVOS (P2,003.40), and moral damages in
the amount of TEN THOUSAND PESOS (P10,000.00), with interest;
Persons, who know the residence of Doctor Aramil, were confused by the
distorted, lingering impression that he was renting his residence from Arcadio or 4. Vidal Agliam Jr., Robert Cacal and Ronnel Tolentino, moral damages in the
that Arcadio had leased it from him. Either way, his private life was mistakenly amount of FIVE THOUSAND PESOS (P5,000.00) each, with interest.
and unnecessarily exposed. He suffered diminution of income and mental
anguish. 5. The costs.

WHEREFORE, the judgment of the Appellate Court is affirmed. Costs against The accused shall be credited in the service of their sentence the full time during
the petitioner. which they had undergone preventive imprisonment, if they agreed voluntarily
in writing to abide by the same disciplinary rules imposed upon convicted
SO ORDERED. prisoners, otherwise, they shall be credited in the service thereof with only four-
fifths of the time during which they had undergone preventive imprisonment. 1

DAMAGES In the warm summer evening of May 28, 1991, Carmelo Agliam, his half-
G.R. No. 120921 January 29, 1998 brother Eduardo Tolentino, Ronnel Tolentino, Vidal Agliam, his brother Jerry
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Agliam, Robert Cacal, Raymundo Bangi and Marcial Barid converged at
a carinderia owned by Ronnel Tolentino at Ganayao, Pasuquin, Ilocos Norte.
vs. FELIPE BALLESTEROS, CESAR GALO and ALVIN
They proceeded to the barangay hall at Carusipan to attend a dance. The group
BULUSAN, accused-appellants. did not tarry for long at the dance because they sensed some hostility from Cesar
Galo and his companions who were giving them dagger looks. In order to avoid firing incident took place; hence, he could not have been one of those who
trouble, especially during the festivity, they decided to head for home instead of strafed the jeep.5
reacting to the perceived provocation of Galo and his companions.
For his part, Ballesteros interposed the defense of alibi, narrating to the court
The group had barely left when, within fifty meters from the dance hall, their that, on May 28, 1991, at around 7:00 o'clock in the evening, he went to a
owner jeep was fired upon from the rear. Vidal Agliam was able to jump out nearby store to purchase some cigarettes. He returned home within thirty
from the eastern side of the "topdown" jeep and landed just beside it. He minutes and cleaned his garlic bulbs before retiring at 9:00 o'clock. The next
scurried to the side of the road and hid in the ricefield. His younger brother Jerry morning, he busied himself with some chores, which included fertilizing his
also managed to jump out, but was shot in the stomach and died.2 Carmelo pepper plants with sulfate. He handled the fertilizers without gloves. To counter
Agliam, Robert Cacal and Ronnel Tolentino sustained injuries in the right foot, the finding of traces of nitrates on his left hand, Ballesteros maintained that he
back of the right thigh, and legs and thighs, respectively. 3 The stunned Eduardo uses his left hand in lighting cigarettes, as it was very painful for him to use his
Tolentino was not even able to move from his seat and was hit with a bullet right hand. He likewise informed the trial court that he had no motive to kill the
which punctured his right kidney.4 He did not survive. The precipitate attack victims.6
upon the jeep left two people dead and four others injured.
Bulusan echoed the defense of alibi of Galo and Ballesteros, stating that he saw
Based upon the affidavits of Carmelo and Vidal Agliam, warrants for the arrest only Galo on the evening of the dance but did not talk to him. He denied joining
of Ballesteros, Galo and Bulusan were issued. Charged with the crime of double the two later that night because after the dance, he went straight to the house of
murder with multiple frustrated murder, an information was filed as follows: Michael Viloria, where he spent the night he went to work at 7:00 o'clock in the
morning of the following day. 7
That on or about (sic) May 28, 1991, in the Municipality of Pasuquin, Ilocos
Norte, Philippines and within the jurisdiction of the Honorable Court, the The trial court found the three accused guilty beyond reasonable doubt of
abovenamed accused, nighttime purposely sought, with evident premeditation murder, qualified by treachery, as charged, defined and penalized under Article
and treachery, confederating and mutually helping one anotlner, did then and 248 of the Revised Penal Code.
there, with intent to kill, willfully, unlawfully and feloniously attack and shot
Eduardo Tolentino Sr., Jerry Agliam, Vidal Agliam, Carmelo Agliam, Robert The accused now come to the High Court on appeal, praying that the decision of
Cacal and Ronnel Tolentino, with the use of firearms which caused the death of the trial court be reversed and that a new one be entered acquitting them of the
Eduardo Tolentino Sr. and Jerry Agliam and thereby inflicting gunshot wounds charges.
to Vidal Agliam, Carmelo Agliam, Robert Cacal and Ronnel Tolentino having
performed all the acts which would have produced the crime of Murder, but The principal question to be resolved has to do with the merits of the decision of
which did not by reason of causes independent of the will of the defendant,
the lower court. Was it correct in finding accused-appellants guilty beyond
namely the able and timely medical assistance given to said Vidal Agliam,
reasonable doubt? We answer in the affirmative.
Carmelo Agliam, Robert Cacal and Ronnel Tolentino which prevented their
death.
Accused-appellants insist that the trial court erred in finding that Carmelo and
Vidal Agliam recognized them as the assailants. This claim is unmeritorious. In
All pleaded not guilty. Paraffin tests conducted on Galo and Ballesteros
their testimonies, Carmelo and Vidal Agliam both described the area to be well
produced positive results. Bulusan was not tested for nitrates.
illumined by the moon. The shooting took place on a small road in the
mountainous terrains of Ilocos Norte, where the air is free from darkening
In his testimony, Galo claimed that he did not even talk to Bulusan or any of his elements and turbidity. It being a summer evening, there could not have been
companions at the basketball court, as alleged by the complainants. Having been any fog to becloud the atmosphere and hamper the vision of the victims, which
found with gunpowder residue in his hands, Galo attempted to exculpate himself would have prevented them from clearly seeing their assailants. They pinpointed
from the results by confessing that he had been a cigarette smoker for the past the location of the malefactors to be approximately three meters from where
ten years and had, in fact, just consumed eight cigarette sticks prior to the test. they stood.8 Considering the luminescence of the moon and the proximity
He further asserted that paraffin tests are not infallible, and that his hand may between them, the victims could distinctly identify their assailants. It must be
have been contaminated by a nitrogenous compound, the source of which is noted that Carmelo was acquainted with Galo and his brother, a butcher, since
urine. Lastly, he said that he was not even present at the crime scene when the he used to deal with them in his business of buying and selling cattle. 9 Bulusan
was a classmate of Vidal at Cadaratan School. Generally, people in rural Accused-appellants are under the common misconception that proof beyond
communities know each other both by face and name. 10Bulusan and Agliam reasonable doubt requires total freedom from any quantum of doubt. This is not
were, not only townmates, but former classmates as well. The constant so. Under Section 2, Rule 133 of the Rules of Court,
interaction between them through the years would necessarily lead to familiarity
with each other such that, at the very least, one would have been able to (p)roof beyond reasonable doubt does not mean such a degree of proof as,
recognize the other easily. excluding possibility of error, produces absolute certainty. Moral certainty only
is required, or that degree of proof which produces conviction in an
That accused-appellants had no motive in perpetrating the offense is irrelevant. unprejudiced mind.
A distinction is herein timely made between motive and intent. Motive is the
moving power which impels one to action for a definite result. Intent, on the Absolute certainty of guilt is not demanded by law to convict a person of a
other hand, is the purpose to use a particular means to effect such criminal charge. The doubt to the benefit of which an accused is entitled in a
result. 11Motive alone is not proof of a crime. 12 In order to tip the scales in its criminal trial is a reasonable doubt, not a whimsical or fanciful doubt based on
favor, intent and not motive must be established by the prosecution. Motive is imagined but wholly improbable possibilities and unsupported by
hardly ever an essential element of a crime. A man driven by extreme moral evidence. 21Reasonable doubt is that engendered by an investigation of the
perversion may be led to commit a crime, without a real motive but a just for the whole proof and inability, after such investigation, to let the mind rest easy upon
sake of committing it. 13 Along the same line, a man who commits a crime with the certainty of guilt. 22 A precise example would be the uncorroborated alibi of
an apparent motive may produce different results, for which he is punished. As accused in the case at bar where accused-appellants individually interposed the
held in a line of cases, the rule is well-settled that the prosecution need not prove wavering defense of alibi. Galo failed to elucidate on his whereabouts after the
motive on the part of the accused when the latter has been positively identified dance, whereas Bulusan claimed to have slept in the house of one Michael
as the author of the crime. 14 Lack or absence of motive for committing the Viloria. Ballesteros attested that he was not at the dance hall at all. None of them,
crime does not preclude conviction thereof where there were reliable witnesses however, attempted to corroborate their alibi through the testimony of witnesses.
who fully and satisfactorily identified the accused as the perpetrator of the In fact, they never attempted to present as witnesses those who would have
felony. 15 testified to having seen them elsewhere on the night in question. Had they done
so, the presentation of corroborative testimony would have reenforced their
Accused-appellant's attempt to offer wild excuses regarding the source of the defense of alibi. As held in People vs. Ligotan, 23 an alibi must be supported by
gunpowder traces found on their hands is futile. Experts confirm the possibility credible corroboration from disinterested witnesses, and where such defense is
that cigarettes, fertilizers and urine may leave traces of nitrates, but these are not corroborated, it is fatal to the accused.
minimal and, unlike those found in gunpowder, may be washed off with tap
water. The Court correctly ruled in finding that the offense was qualified by treachery.
Under Paragraph 16, Article 14 of the Revised Penal Code, "(t)here is treachery
The hackneyed defense of alibi interposed by accused-appellants must likewise when the offender commits any of the crimes against the person employing
fail. As consistently enunciated by this Court, the established doctrine is that, for means, methods or forms in the execution thereof which tend directly and
the defense of alibi to prosper, the accused must prove, not only that he was at specially to insure its execution without risk to himself arising from the defense
some other place at the time of the commission of the crime, but also that it was which the offended party might make." The requisites of treachery are twofold:
physically impossible for him to be at the locus delicti or within its immediate (1) (t)hat at the time of the attack, the victim was not in a position to defend
vicinity. 16 This accused-appellants failed to satisfactorily prove. On the night of himself ; and (2) that the offender consciously adopted the particular means,
May 28, 1991, Galo and Bulusan attended the dance at the barangay hall. After method or form of attack employed by him. 24 As regards the second requisite,
the dance, they went their separate ways but remained within the barangay. Galo the accused must make some preparation to kill his victim in such a manner at to
lingered in the premises. Bulusan slept over at the house of Michael Viloria, insure the execution of the crime or to make it impossible or hard for the person
which was within walking distance from the dance hall. attacked to defend himself or retaliate. 25 There must be evidence that such form
of attack waspurposely adopted by the accused. 26 Here, it is obvious that the
The defense of alibi must be established by positive, clear and satisfactorily accused-appellants had sufficient opportunity to reflect on their heinous plan.
evidence, the reason being that it is easily manufactured and usually so The facts show that the attack was well-planned and not merely a result of the
unreliable that it can rarely be given credence. 17 This is especially true in case impulsiveness of the offenders. Manifestations of their evil designs were already
of positive identification of the culprit by reliable witnesses, 18 which renders apparent as early as the time of the dance. They were well-armed and
their alibis worthless. 19 Positive identification prevails over denials and alibis.20 approached the homebound victims, totally unaware of their presence, from
behind. There was no opportunity for the latter to defend themselves, the attack On August 26, 1982, Civil Case No. 47466 for the grant of an easement of right
being so sudden and Eduardo Tolentino was shot right where he sat. of way was filed by Pacifico Mabasa against Cristino Custodio, Brigida R.
Custodio, Rosalina R. Morato, Lito Santos and Maria Cristina C. Santos before
The trial court was also correct in the award of damages to the heirs of the the Regional Trial Court of Pasig and assigned to Branch 22 thereof.2
victims. Damages may be defined as the pecuniary compensation, recompense,
or satisfaction for an injury sustained, or as otherwise expressed, the pecuniary The generative facts of the case, as synthesized by the trial court and adopted by
consequences which the law imposes for the breach of some duty or the the Court of Appeals, are as follows:
violation of some right. 27 Actual or compensatory damages are those awarded in
satisfaction of, or in recompense for, loss or injury sustained, 28 whereas moral Perusing the record, this Court finds that the original plaintiff Pacifico Mabasa
damages may be invoked when the complainant has experienced mental anguish, died during the pendency of this case and was substituted by Ofelia Mabasa, his
serious anxiety, physical suffering, moral shock and so forth, and had surviving spouse [and children].
furthermore shown that these were the proximate result of the offender's
wrongful act or omission. 29 In granting actual or compensatory damages, the The plaintiff owns a parcel of land with a two-door apartment erected thereon
party making a claim for such must present the best evidence available, viz., situated at Interior P. Burgos St., Palingon, Tipas, Tagig, Metro Manila. The
receipts, vouchers, and the like, 30 as corroborated by his testimony. 31 Here, the
plaintiff was able to acquire said property through a contract of sale with
claim for actual damages by the heirs of the victims is not controverted, the
spouses Mamerto Rayos and Teodora Quintero as vendors last September 1981.
same having been fully substantiated by receipts accumulated by them and
Said property may be described to be surrounded by other immovables
presented to the court. 32 Therefore, the award of actual damages is proper.
pertaining to defendants herein. Taking P. Burgos Street as the point of
However, the order granting compensatory damages to the heirs of Jerry Agliam reference, on the left side, going to plaintiff's property, the row of houses will be
and Eduardo Tolentino Sr. must be amended. Consistent with the policy of this as follows: That of defendants Cristino and Brigido Custodio, then that of Lito
Court, the amount of fifty thousand pesos (P50,000.00) is given to the heirs of
and Maria Cristina Santos and then that of Ofelia Mabasa. On the right side (is)
the victims by way of indemnity, and not as compensatory damages. 33 As
that of defendant Rosalina Morato and then a Septic Tank (Exhibit "D"). As an
regards moral damages, the amount of psychological pain, damage and injury
access to P. Burgos Street from plaintiff's property, there are two possible
caused to the heirs of the victims, although inestimable, 34 may be determined by
passageways. The first passageway is approximately one meter wide and is
the trial court in its discretion. Hence, we see no reason to disturb its findings as about 20 meters distan(t) from Mabasa's residence to P. Burgos Street. Such path
to this matter.
is passing in between the previously mentioned row of houses. The second
passageway is about 3 meters in width and length from plaintiff Mabasa's
WHEREFORE, premises considered, the decision appealed from is hereby residence to P. Burgos Street; it is about 26 meters. In passing thru said
AFFIRMED WITH MODIFICATION. No pronouncement as to costs. passageway, a less than a meter wide path through the septic tank and with 5-6
meters in length, has to be traversed.
SO ORDERED.
When said property was purchased by Mabasa, there were tenants occupying
G.R. No. 116100 February 9, 1996 the remises and who were acknowledged by plaintiff Mabasa as
tenants. However, sometime in February, 1982, one of said tenants vacated the
SPOUSES CRISTINO and BRIGIDA CUSTODIO and SPOUSES LITO apartment and when plaintiff Mabasa went to see the premises, he saw that
and MARIA CRISTINA SANTOS,petitioners, vs. COURT OF there had been built an adobe fence in the first passageway making it narrower
APPEALS, HEIRS OF PACIFICO C. MABASA and REGIONAL TRIAL in width. Said adobe fence was first constructed by defendants Santoses along
their property which is also along the first passageway. Defendant Morato
COURT OF PASIG, METRO MANILA, BRANCH 181, respondents. constructed her adobe fence and even extended said fence in such a way that the
entire passageway was enclosed. (Exhibit "1-Santoses and Custodios, Exh. "D"
This petition for review on certiorari assails the decision of respondent Court of for plaintiff, Exhs. "1-C", "1-D" and "1-E") And it was then that the remaining
Appeals in CA-G.R. CV No. 29115, promulgated on November 10, 1993, which tenants of said apartment vacated the area. Defendant Ma. Cristina Santos
affirmed with modification the decision of the trial court, as well as its testified that she constructed said fence because there was an incident when her
resolution dated July 8, 1994 denying petitioner's motion for reconsideration. 1 daughter was dragged by a bicycle pedalled by a son of one of the tenants in said
apartment along the first passageway. She also mentioned some other
inconveniences of having (at) the front of her house a pathway such as when
some of the tenants were drunk and would bang their doors and windows. Some For failure to appeal the decision of the trial court to the Court of Appeals,
of their footwear were even lost. . . .3 (Emphasis in original text; corrections in petitioners cannot obtain any affirmative relief other than those granted in the
parentheses supplied) decision of the trial court. That decision of the court below has become final as
against them and can no longer be reviewed, much less reversed, by this Court.
On February 27, 1990, a decision was rendered by the trial court, with this The rule in this jurisdiction is that whenever an appeal is taken in a civil case, an
dispositive part: appellee who has not himself appealed may not obtain from the appellate court
any affirmative relief other than what was granted in the decision of the lower
Accordingly, judgment is hereby rendered as follows: court. The appellee can only advance any argument that he may deem necessary
to defeat the appellant's claim or to uphold the decision that is being disputed,
and he can assign errors in his brief if such is required to strengthen the views
1) Ordering defendants Custodios and Santoses to give plaintiff permanent expressed by the court a quo. These assigned errors, in turn, may be considered
access ingress and egress, to the public street; by the appellate court solely to maintain the appealed decision on other grounds,
but not for the purpose of reversing or modifying the judgment in the appellee's
2) Ordering the plaintiff to pay defendants Custodios and Santoses the sum of favor and giving him other affirmative reliefs.7
Eight Thousand Pesos (P8,000) as indemnity for the permanent use of the
passageway. However, with respect to the second issue, we agree with petitioners that the
Court of Appeals erred in awarding damages in favor of private respondents.
The parties to shoulder their respective litigation expenses.4 The award of damages has no substantial legal basis. A reading of the decision
of the Court of Appeals will show that the award of damages was based solely
Not satisfied therewith, therein plaintiff represented by his heirs, herein private on the fact that the original plaintiff, Pacifico Mabasa, incurred losses in the
respondents, went to the Court of Appeals raising the sole issue of whether or form of unrealized rentals when the tenants vacated the leased premises by
not the lower court erred in not awarding damages in their favor. On November reason of the closure of the passageway.
10, 1993, as earlier stated, the Court of Appeals rendered its decision affirming
the judgment of the trial court with modification, the decretal portion of which However, the mere fact that the plaintiff suffered losses does not give rise to a
disposes as follows: right to recover damages. To warrant the recovery of damages, there must be
both a right of action for a legal wrong inflicted by the defendant, and damage
WHEREFORE, the appealed decision of the lower court is hereby AFFIRMED resulting to the plaintiff therefrom. Wrong without damage, or damage without
WITH MODIFICATION only insofar as the herein grant of damages to wrong, does not constitute a cause of action, since damages are merely part of
plaintiffs-appellants. The Court hereby orders defendants-appellees to pay the remedy allowed for the injury caused by a breach or wrong. 8
plaintiffs-appellants the sum of Sixty Five Thousand (P65,000) Pesos as Actual
Damages, Thirty Thousand (P30,000) Pesos as Moral Damages, and Ten There is a material distinction between damages and injury. Injury is the illegal
Thousand (P10,000) Pesos as Exemplary Damages. The rest of the appealed invasion of a legal right; damage is the loss, hurt, or harm which results from the
decision is affirmed to all respects.5 injury; and damages are the recompense or compensation awarded for the
damage suffered. Thus, there can be damage without injury in those instances in
On July 8, 1994, the Court of Appeals denied petitioner's motion for which the loss or harm was not the result of a violation of a legal duty. These
reconsideration.6 Petitioners then took the present recourse to us, raising two situations are often called damnum absque injuria.9
issues, namely, whether or not the grant of right of way to herein private
respondents is proper, and whether or not the award of damages is in order. In order that a plaintiff may maintain an action for the injuries of which he
complains, he must establish that such injuries resulted from a breach of duty
With respect to the first issue, herein petitioners are already barred from raising which the defendant owed to the plaintiff a concurrence of injury to the plaintiff
the same. Petitioners did not appeal from the decision of the court a quo granting and legal responsibility by the person causing it.10 The underlying basis for the
private respondents the right of way, hence they are presumed to be satisfied award of tort damages is the premise that an individual was injured in
with the adjudication therein. With the finality of the judgment of the trial court contemplation of law. Thus, there must first be the breach of some duty and the
as to petitioners, the issue of propriety of the grant of right of way has already imposition of liability for that breach before damages may be awarded; it is not
been laid to rest. sufficient to state that there should be tort liability merely because the plaintiff
suffered some pain and suffering.11
Many accidents occur and many injuries are inflicted by acts or omissions which reason of the rightful use of the said land by petitioners is damnum absque
cause damage or loss to another but which violate no legal duty to such other injuria.17
person, and consequently create no cause of action in his favor. In such cases,
the consequences must be borne by the injured person alone. The law affords no A person has a right to the natural use and enjoyment of his own property,
remedy for damages resulting from an act which does not amount to a legal according to his pleasure, for all the purposes to which such property is usually
injury or wrong.12 applied. As a general rule, therefore, there is no cause of action for acts done by
one person upon his own property in a lawful and proper manner, although such
In other words, in order that the law will give redress for an act causing damage, acts incidentally cause damage or an unavoidable loss to another, as such
that act must be not only hurtful, but wrongful. There must be damnum et damage or loss is damnum absque injuria. 18 When the owner of property makes
injuria.13 If, as may happen in many cases, a person sustains actual damage, that use thereof in the general and ordinary manner in which the property is used,
is, harm or loss to his person or property, without sustaining any legal injury, such as fencing or enclosing the same as in this case, nobody can complain of
that is, an act or omission which the law does not deem an injury, the damage is having been injured, because the incovenience arising from said use can be
regarded as damnum absque injuria.14 considered as a mere consequence of community life. 19

In the case at bar, although there was damage, there was no legal injury. The proper exercise of a lawful right cannot constitute a legal wrong for which
Contrary to the claim of private respondents, petitioners could not be said to an action will lie, 20 although the act may result in damage to another, for no
have violated the principle of abuse of right. In order that the principle of abuse legal right has been invaded. 21 One may use any lawful means to accomplish a
of right provided in Article 21 of the Civil Code can be applied, it is essential lawful purpose and though the means adopted may cause damage to another, no
that the following requisites concur: (1) The defendant should have acted in a cause of action arises in the latter's favor. An injury or damage occasioned
manner that is contrary to morals, good customs or public policy; (2) The acts thereby is damnum absque injuria. The courts can give no redress for hardship
should be willful; and (3) There was damage or injury to the plaintiff. 15 to an individual resulting from action reasonably calculated to achieve a lawful
means. 22
The act of petitioners in constructing a fence within their lot is a valid exercise
of their right as owners, hence not contrary to morals, good customs or public WHEREFORE, under the compulsion of the foregoing premises, the appealed
policy. The law recognizes in the owner the right to enjoy and dispose of a thing, decision of respondent Court of Appeals is hereby REVERSED and SET ASIDE
without other limitations than those established by law. 16 It is within the right of and the judgment of the trial court is correspondingly REINSTATED.
petitioners, as owners, to enclose and fence their property. Article 430 of the
Civil Code provides that "(e)very owner may enclose or fence his land or
tenements by means of walls, ditches, live or dead hedges, or by any other
means without detriment to servitudes constituted thereon." G.R. No. 114118 August 28, 2001
HEIRS OF SIMEON BORLADO, namely, ADELAIDA BORLADO,
At the time of the construction of the fence, the lot was not subject to any LORETO BORLADO, REYNALDO BORLADO, RICARDO BORLADO,
servitudes. There was no easement of way existing in favor of private
respondents, either by law or by contract. The fact that private respondents had
FRANCISCO BORLADO and ALADINO DORADO, petitioners,
no existing right over the said passageway is confirmed by the very decision of vs. COURT OF APPEALS, and SALVACION VDA. DE BULAN,
the trial court granting a compulsory right of way in their favor after payment of BIENVENIDO BULAN, JR., NORMA B. CLARITO and THE
just compensation. It was only that decision which gave private respondents the PROVINCIAL SHERIFF OF CAPIZ, respondents.
right to use the said passageway after payment of the compensation and imposed
a corresponding duty on petitioners not to interfere in the exercise of said right.
The case is an appeal via certiorari from a decision1 of the Court of Appeals
affirming the decision of the trial court, the dispositive portion of which reads:
Hence, prior to said decision, petitioners had an absolute right over their
property and their act of fencing and enclosing the same was an act which they
may lawfully perform in the employment and exercise of said right. To repeat, "WHEREFORE, judgment is rendered dismissing plaintiffs' complaint for lack
whatever injury or damage may have been sustained by private respondents by of cause of action and ordering as vacated the restraining order and writ of
preliminary injunction issued in this case; and
"1. Plaintiffs to be jointly and solidarily liable to defendants the quantity of one petitioners (p. 1, id.). The ejectment case was decided in favor of the
hundred (100) cavans of palay every year from 1972 until plaintiffs vacate the respondents whereby the petitioners, their agents, tenants, privies and members
premises of the land in question; of their families were ordered to vacate Lot No. 2079 and deliver possession to
the respondents together with all improvements and standing crops; to pay said
"2. Declaring defendants as owner of the land and entitled to possession; respondents One Hundred (100) cavans of palay annually from 1972 to the
present or in the total amount of One Thousand One Hundred (1,100) cavans of
palay; and to pay the sum of Five Thousand (P5,000.00) Pesos as reimbursement
"3. Ordering plaintiffs to pay defendants the sum of P5,000.00 as attorney's fees
and the sum of P5,000.00 as litigation expenses; and for the amount respondents had paid their lawyer to protect their rights; and, the
costs of suit (Exh. "57", pp. 256-261, id.). Instead of appealing the adverse
decision to the Court of First Instance (now RTC), on 8 November 1983,
"4. To pay the costs of the suit. petitioners filed the present case with the Regional Trial Court, Branch 18,
Roxas City, docketed as Civil Case No. V-4887. This case was dismissed for
"SO ORDERED. "Roxas City, Philippines, March 18, 1988. lack of cause of action in a decision, the decretal portion of which was quoted
earlier."5
The Facts
On 24 November 1993, the Court of Appeals promulgated its decision
The facts, as found by the Court of Appeals, are as follows: affirming in toto the appealed decision.6

"The records show that plaintiffs-appellants3 (petitioners) are the heirs of Simeon Hence, this appeal.7
Borlado whose parents were Serapio Borlado and Balbina Bulan. The original
owner of the lot in question, Lot No. 2097 of the Pontevedra Cadastre, Maayon, The Issue
Capiz, was Serapio Borlado, grandfather of petitioners.
The issue raised is whether the Court of Appeals erred in ruling that respondents
"On 15 April 1942, Serapio sold the lot to Francisco Bacero (Exh. "C", p. 247, were the owners of the lot in question.
MTC Record) for Three Hundred Pesos (P300.00). After the death of Francisco
on 26 February 1948, his widow Amparo Dionisio Vda. de Bacero, in her The Court's Ruling
capacity as legal guardian of her minor children, namely: Nicolas, Valentin and
Luzviminda, all surnamed Bacero and forced heirs of Francisco Bacero sold it
We deny the petition. The issue is factual. In an appeal via certiorari, we may
(the lot) to the Spouses Bienvenido Bulan and Salvacion Borbon, through a
not review the findings of fact of the Court of Appeals.8 When supported by
Deed of Absolute Sale dated 27 August 1954 (Exh. 65, pp. 243-245, id.).
substantial evidence, the findings of fact of the Court of Appeals are conclusive
and binding on the parties and are not reviewable by this Court,9 unless the case
"Upon the execution of the Deed of Sale and even prior thereto, actual falls under any of the exceptions to the rule.10
possession of Lot No. 2057 was with the vendees-spouses Bulans in view of a
loan obtained by Francisco Bacero from them in December 1947 (Exh.
Petitioner failed to prove that the case falls within the exceptions. 11 The Supreme
"65", supra). Exercising their right of ownership under the Deed of Sale,
Court is not a trier of facts. 12 It is not our function to review, examine and
Salvacion Borbon Vda. de Bulan declared the lot in her name in 1900 for
taxation purposes under Tax Declaration No. 2232 (Exh. "F", p. 254, Record evaluate or weigh the probative value of the evidence presented. 13 A question of
[MTC]). She paid the corresponding taxes as evidenced by the Tax Receipts fact would arise in such event.14 Questions of fact cannot be raised in an appeal
via certiorari before the Supreme Court and are not proper for its
marked as Exhibits "K", "J", "I", "G", "F" and "H" (pp. 248-253, Record, id.).
consideration.15
Salvacion and her co-defendants-appellees'4possession of the lot was continuous,
peaceful, uninterrupted, adverse and exclusive until November 4, 1972, when
petitioners forcibly entered and wrested physical possession thereof from them. Nevertheless, as a matter of law, the trial court and the Court of Appeals erred in
holding petitioners liable to pay respondents one hundred (100) cavans of palay
every year from 1972 until they vacate the premises of the land in question.
"On 23 November 1972, respondents filed with the Municipal Court of Maayon,
Capiz a complaint for ejectment docketed as Civil Case No. A-1, against
The one hundred cavans of palay was awarded as a form of damages. We cannot On August 12, 1952, the herein defendants filed an Urgent Motion to Dissolve
sustain the award. "Palay" is not legal tender currency in the Philippines. the Writ of Preliminary Attachment on the following grounds:

El Fallo del Tribunal 1. That the plaintiff has no cause of action because (a) the right of
action, if any, has prescribed, and (b) the cause of action is barred by a
WHEREFORE, the Court DENIES the petition and AFFIRMS the decision of prior judgment; and
the Court of Appeals in CA-G.R. CV No. 18980 with modification that
petitioners' liability to pay respondents one hundred (100) cavans of palay every 2. That the allegations in the petition for the issuance of the writ and in
year from 1972 until petitioners vacate the land in question is deleted, for lack of the affidavit in support thereof are false.
basis. No costs. SO ORDERED.
On September 10, 1952, the lower court, after due hearing, dissolved the writ.
G.R. No. L-12736 July 31, 1961
FRANCISCO L. LAZATIN, plaintiff-appellant, Subsequently, the defendants filed their answer and after the customary
admissions and denials, interposed as special defenses, the same grounds
vs. ANGEL C. TWAÑO and GREGORIO T. CASTRO, defendants- averred in the motion to lift the writ and counterclaimed:
appellees.
1. That the plaintiff herein has filed a clearly unfounded civil action
The case at bar had its genesis in Civil Case No. 213, CFI, Manila, entitled against the herein defendants as a result of which the latter had suffered
"Angel C. Twaño and Gregorio T. Castro, plaintiffs, versus F. L. Lazatin, et al., actual or compensatory damages by way of attorney's fees in the sum of
defendants, Dionisio P. Tanglao, Intervenor," for the recovery of P35,000.00, P3,000.00
plus interest, realized in connection with the purchase by them (plaintiffs and
defendants) from the U.S. government, and the subsequent sale, of some 225 2. That as a result of the wrongful attachment and the false statements
auto-trucks. After trial, the CFI of Manila dismissed the complaint as well as the made by the plaintiffs, under oath, in support of his Ex-Parte Petition
intervention. The order of dismissal was taken to the Court of Appeals (CA-G.R. for the Writ, the herein defendants have suffered moral damages to the
No. 4533-R), which, on November 3, 1950, rendered judgment reversing the amount of P10,000.00
said order and declaring that plaintiffs and defendants were co-owners in the
business of buying and selling surplus auto-trucks, and ordered the defendants
3. That the wrongful attachment against the properties and the sum of
(one of them Lazatin) to pay to the plaintiff s therein, the sum of P10,000.00,
P13,849.88 had caused actual damages to the herein defendants,
with legal interest from the filing of the complaint. The said decision became
represented by the legal interest on such amount.
final; it was executed, with the levy of the properties of defendant Lazatin and
their subsequent sale at public auction, wherein the plaintiffs Twaño and Castro
were the purchasers. Before the expiration of the redemption period, on August On May 9, 1953, plaintiff Lazatin died and on March 10, 1954, Gil Gotiangco
2, 1952, defendant Lazatin, deposited with the Sheriff of Pampanga the sum of was appointed and qualified as administrator of plaintiff's estate.
P13,849.88, redemption price. On August 9, 1952, the same Francisco Lazatin,
filed the present action, to recover from the same Twaño and Castro the sum of On the date set for hearing, the defendants herein were granted, a preliminary
P19,676.09, supposedly a balance of the proceeds of auto-trucks, sold directly to hearing on their special defenses (Sec. 5, Rule 8). The lower court on November
purchasers by said defendants. On the same date, plaintiff Lazatin, alleging that 12, 1954, entered an order, dismissing the complaint on the ground that it was
"there is no security whatsoever for the payment of the amount claimed in the barred by a prior judgment and by the statute of limitations. At the same time,
complaint and that the defendant defendants are removing or are about to the Court set the case for hearing on defendants' counterclaim. On October 28,
remove or dispose of their property with intent to defraud their creditors, 1955, the trial court rendered judgment, ordering the estate of Lazatin to pay the
particularly the plaintiff," secured a writ of attachment on the amount he defendants therein the following sums: —
deposited, and pursuant thereto, the Sheriff of Pampanga refused to deliver the
sum of P13,849.88, which should have been paid to the herein defendants. (1) P3,000.00 for the fees of Attorney Manuel O. Chan;

(2) P,500.00 for moral damages to each of the defendants;


(3) Six percent (6%) interest on the amount of P13,849.88 from August 6, 1952 element there can be no recovery (6 C.J. 533- 534; 541). "The authorities are
until said amount is actually delivered to and receipted by the defendants; and quite uniform in holding that, in the absence of malice, injuries to credit,
reputation and business are too remote and speculative to be recovered" (Union
(4) To pay the costs. Nat. Bank v. Cross, 100 Wis. 174, 75 NW 992). There is no issue of malice,
damages must be compensatory merely, and confined to the actual loss from
deprivation of the property attached or injury to it, or in case of closing business,
Judgment is also rendered against the Central Surety and Insurance Co., which is
to the probable profits of the business, during the time of its stoppage (Holiday
solidarily liable with the Estate of the deceased plaintiff Francisco L. Lazatin on
its bond for the sum of P20,000.00, filed by said Company for the issuance on Bros. Cohen 34 Ark. 707). All of which go to show that the attachment
the writ of attachment for the amounts mentioned in Nos. (2) and (3) of the defendant is not entitled to moral damages, unless it is alleged and established
that the writ was maliciously sued out.
dispositive part of this decision.

This notwithstanding the defendants-appellees invoke the following rule, in


Upon appellant's request, the appeal was certified by the Court of Appeals to this
Court, as the issues involved therein are purely legal in character. support of their thesis.

SEC. 4. Bond required from plaintiff. — The party applying for the
The law on damages is found on Title XVII of the Civil Code (Arts. 2195 to
order must give a bond executed to the defendant in amount to be fixed
2235). The rules governing damages laid down in other laws, and the principles
by the judge, not exceeding the plaintiff claim that the plaintiff will pay
of the general law on damages are adopted in so far as they are not in consistent
with the Code (Arts. 2196 and 2198). Article 2197 mentions the kind of all the costs which it may be adjudged to the defendant and all damages
damages recoverable, among which are (1) actual or compensatory and (2) which he may sustain by reason of the attachment, if the court shall
finally adjudge that the plaintiff was not entitled thereto. (Rule 59, R.C.)
moral Article 2219 provides that moral damages may be recovered in
the following and analogous cases . . . (3) malicious prosecution. There is an
abundance of case holding that the action to recover damages from the They claim that under the above section, malice and want of probable cause are
attachment plaintiff, for the wrongful issuance and levy of an attachment not essential (II Moran's Rules of Court , 2nd Ed. pp. 19-20); that the language
(malicious attachment) is identical or is analogous to the ordinary action used therein is clear and its intent and purpose are obvious; its provision cannot
for malicious prosecution (Eastern v. Bank of Stockton, 66 Cal. 123, 56 Am. be given a broader scope than what it imports; and the element of malice cannot
Rep. 77, 4 Pac. 1106; Robinson v. Kellum 6 Cal. 399; Grant v. Moore, 29 Cal. be implied from the terms thereof. It is finally argued that as the attachment-
644; King v. Montgomery 50 Cal. 115; Gonzales v. Cobliner 68 Cal 151, 8 Pac. plaintiff, according to the rule, should pay "all the damages" which the
697; Asevado v. Orr 100 Cal. 293, 34 Pac. 777). It may logically be inferred, attachment defendant might sustain by reason of the attachment, if the court
therefore, that in order hat moral damages may be recovered in connection with shall finally adjudge that the plaintiff was not entitled thereto, the ruling of the
he writ of attachment under consideration, malice is an essential ingredient trial court that the appellant should pay the appellees moral damages, is correct.
thereof. In Songco v. Sellner, 37 Phil. 154, where the evidence showed that We do not share this view. It should be observed that Sec. 4 of Rule 59, does not
defendant offered damages to his credit, as a result of writ of attachment prescribe the remedies available to the attachment defendant in case of a
wrongfully issued, the Court declared that such damages were remote and wrongful attachment, but merely provides an action for recovery upon the bond,
speculative and that there was no 'ending that the attachment was maliciously based on the undertaking therein made and not upon the ability arising from a
sued out. In Aboitiz v. Da Silva, 45 Phil. 883, the Court refused to grant damages tortious act, like the malicious suing of an attachment. Under the first, where
for loss of reputation by reason of an improper attachment, on the ground that malice is not essential, the attachment defendant, is entitled to recover only the
there was no evidence from which malice on the part of the plaintiff or loss of actual damages sustained by him by reason of the attachment. Under the second,
credit to the defendant, may be inferred or presumed. In Masterson v. Smith where the attachment is maliciously sued out, the damages recoverable may
Navigation, 60 Phil. 366 ' damages to good name, allegedly suffered by the include a compensation for every injury to his credit, business or feelings (Tyler
defendant as a result f a writ of attachment wrongfully issued, were disallowed v. Mahoney 168 NC 237, 84 SE 362; Pittsburg etc. C 73, 47 SE 234). And
in the ground that such damages were very problematical. In American considering the fact that the rules of court are of older vintage than the new Civil
jurisdictions where the principles of the general laws on damages in common Code, the matter of damages in the said rules should be encompassed within the
law (adopted by Art. 198 of the new Civil Code), are in force, only actual or framework Of the Civil Code (Art. 2196 Civil Code). It is quite true that said
compensatory damages are recoverable for wrongful but not malicious section 4 employs the expression "all damages", but this should be understood to
attachment. An allowance may be made r injury to feeling if the attachment was refer to the damages resulting from the undertaking itself, the recovery of which
sued out maliciously and without probable cause; but in the absence of his
is subject to "the principles of the general law on damages", earlier discussed. While it may be hard to believe that the plaintiff had labored under the
(Art. 2198, Civil Code, supra). impression that the matters involved in his complaint had not been adjudicated
in the previous litigation between the same parties (Civil Case No. 213 CFI
A cursory perusal of the decision would show that the trial court did not make Manila), because plaintiff himself was a lawyer such error of judgment on his
any express ruling that the writ of attachment was maliciously sued out by the part would not justify the inference that the action was "clearly unfounded". As
plaintiff or any finding of facts or circumstances from which it may be aptly observed by appellants' counsel, defenses as the one interposed by appellee
necessarily inferred that the attachment was thus obtained. The decision does not in their counterclaim "raise questions of law not always of obvious and easy
make any finding that the defendants-appellees did in fact suffer mental anguish solution." While it may appear also that the move was a scheme to prevent the
or injury to their credit or reputation. The decision simply states: "Coming now defendants-appellees from reaping the benefits of the final judgment rendered in
to the moral damages which defendants have suffered consisting of mental their favor in said case CA- G.R. No. 5433-R, still one cannot nullify, without
anguish, serious anxiety and besmirched reputation, it is believed that sing cause, the good and honest motive, which should be presumed, when a litigant
businessmen of good commercial standing and reputation, each of them should goes to court for the determination of his alleged right.
be awarded at least P2,500.00." Moreover the dissolution of the writ was due to
a technicality No moral damages can be inferred from the mere act that the Withal, and considering the fact that defendants-appellant lees were drawn into
redemption price to which defendants were entitled, had been retained by the this litigation by plaintiff-appellant and were compelled to hire an attorney to
provincial sheriff for a period of 38 days. The trial court held that the present protect and defend them, and taking into account the work done by said attorney,
action was already investigated and adjudged in CA-G.R. To 4533-R and the as reflected in the record, throughout the proceedings, we deem it just and
right of action was barred by the state of limitations, and that since the writ of equitable to award at attorney's fees for defendants-appellees. The sum of
attachment was only a remedy adjunct to the main suit, plaintiff-appellant was P3,000.00 adjudicated by the trial court, is reasonable under the circumstances
not entitled to the writ. While the lower court declared that the defendants- (par. 11 Art. 2208, Civil Code).
appellees had an outstanding balance of P171,947.80, in the bank and that they
were not disposing their property in fraud of creditors or of the plaintiff, as It appears that plaintiffs-appellants have abandoned their appeal with respect to
alleged in the petition for the issuance of the writ still the said court did not the payment of 6% interest in the amount of P13,849.88.
make any finding that the said petition was maliciously sued out. We are,
therefore, the opinion that the defendants-appellants are not entitled to moral Modified, with the elimination of moral damages, the decision appealed from is
damages.
affirmed in all other respects. Costs against plaintiff-appellant.

In the absence of stipulation, attorney's fees and expenses of litigation, other


than judicial costs, cannot be covered, except: . . .

(4) In case of a clearly unfounded civil action or proceeding against the G.R. No. L-8385 March 24, 1914
plaintiff.
LUCIO ALGARRA, plaintiff-appellant, vs. SIXTO
xxx xxx xxx
SANDEJAS, defendant-appellee

(11) In any other case where the court deems it just and equitable that This is a civil action for personal injuries received from a collision with the
attorney's fees and expenses of litigation should be recovered." (Art. defendant's automobile due to the negligence of the defendant, who was driving
2208, Civil Code). the car. The negligence of the defendant is not questioned and this case involves
only the amount of damages which should be allowed.
Defendants' counterclaim for the recovery of attorney's fees is based on
paragraph 4 of the cited provision, for legal services rendered in defending the As a result of the injuries received, plaintiff was obliged to spend ten days in the
main suit. There is no showing in the decision appealed from that plaintiffs' hospital, during the first four or five of which he could not leave his bed. After
action is "clearly unfounded". Plaintiffs-appellants' complaint was not dismissed being discharged from the hospital, he received medical attention from a private
because the facts alleged therein were found untrue, but on purely technical practitioner for several days. The latter testified that after the last treatment the
grounds; the special defenses of prescription of the action and res adjudicata. plaintiff described himself as being well. On the trial the plaintiff testified that
he had done no work since the accident, which occurred on July 9, 1912, and
that he was not yet entirely recovered. Plaintiff testified that his earning capacity not suffer from this direct. The court, therefore, did not err in allowing
was P50 per month. It is not clear at what time plaintiff became entirely well her no further damages on this account, because there was no evidence
again, but as to the doctor to whom he described himself as being well stated that she had suffered any.
that this was about the last of July, and the trial took place September 19, two
months' pay would seem sufficient for the actual time lost from his work. The alleged damages which the court refused to entertain in that case and under
Plaintiff further testified that he paid the doctor P8 and expended P2 for the discussion of which appears the above quotation from Viada, were for pain
medicines. This expenses, amounting in all to P110 should also be allowed. and suffering the plaintiff may have experienced. The court said: "For the profits
which the plaintiff failed to obtain, spoken of in the latter part of this article, the
Plaintiff sold the products of a distillery on a 10 per cent commission and made plaintiff was allowed to recover, and the question is, whether the value of the
an average of P50 per month. He had about twenty regular customers who, it loss which she suffered can be extended to pain which she experienced by
seems, purchased in small quantities, necessitating regular and frequent reason of the accident."
deliveries. Since the accident his wife had done something in a small way to
keep up this business but the total orders taken by her would not net them over Actions for damages such as the case at bar are based upon article 1902 of the
P15. He lost all his regular customers but four, other agents filing their orders Civil Code, which reads as follows: "A person who, by act or omission, causes
since his accident. It took him about four years to build up the business he had at damage to another where there is fault or negligence shall be obliged to repair
the time of the accident, and he could not say how long it would take him to get the damage so done."
back the business he had lost.
Of this article, the supreme court of Spain, in its decision of February 7, 1900, in
Under this state of facts, the lower court, while recognizing the justness of he considering the indemnity imposed by it, said: "It is undisputed that said
claim, refused to allow him anything for injury to his business due to his reparation, to be efficacious and substantial, must rationally include the generic
enforced absence therefrom, on the ground that the doctrine of Marcelo vs. idea of complete indemnity, such as is defined and explained in article 1106 of
Velasco (11 Phil., Rep., 277) is opposed t such allowance. The trial court's the said (Civil) Code."
opinion appears to be based upon the following quotation from Viada (vol. 1 p.
539), quoted in that decision: ". . . with regard to the offense of lesiones, for Articles 1106 and 1107 of the Civil Code read as follows:
example, the civil liability is almost always limited to indemnity for damage to
the party aggrieved for the time during which he was incapacitated for
work; . . ." 1106. Indemnity for losses and damages includes not only the amount
of the loss which may have been suffered, but also that of the profit
which the creditor may have failed to realize, reserving the provisions
This statement, however, derives its force, not from any provision of the law contained in the following articles.
applicable to lesiones, but is a mere deduction from the operation of the law
upon the cases arising under it. That the interpretation placed upon this
statement of Viada by the lower court is either not correct, or that it does not 1107. The losses and damages for which a debtor in good faith is liable, are
apply to actions for personal injuries under article 1902 of the Civil Code, is those foreseen or which may have been foreseen, at the time of constituting the
apparent from the decisions of the supreme court of Spain of January 8, 1906, obligation, and which may be a necessary consequence of its nonfulfillment.
January 15, 1902, and October 19, 1909, to which a more extended reference
will be made further on in this opinion. There is nothing said in the decision in In case of fraud, the debtor shall be liable for all those which clearly may
question prohibiting the allowance of compensatory damages, nor does there originate from the nonfulfillment of the obligation.
seem to be anything contained therein opposed to the allowance of such
damages occurring subsequent to the institution of the action. In fact, it appears Fraud is not an element of the present case, and we are not therefore concerned
from the following quotation that the court would have been disposed to with it. The liability of the present defendant includes only those damages which
consider favorably the plaintiff's claim for injury to her business had the were "foreseen or may have been foreseen" at the time of the accident, and
evidence presented it. which are the necessary and immediate consequences of his fault. In discussing
the question of damages under the civil law, Gutierrez (vol. 4, pp. 64, 65) says:
No evidence was then offered by the plaintiff to show that this slight
lameness in any way interfered with the conduct of her business or that In the impossibility of laying down a surer rule, the Code understands known
she could make any less amount therein than she could make if she did damages to be those which in the prudent discernment of the judge merit such a
qualification, although their consequences may not be direct, immediate parents and secondly to his own imprudence, according to the findings
inevitable. of the trial court, not legally objected to in the appeal; so it is beyond
peradventure that the circumstances necessary for imposing the
If it is a question of losses occasioned through other causes, except fraud, and obligations arising from guilt or negligence do not concur in the present
the contracting parties have not covenanted any indemnity for the case of case.
nonfulfillment, then the reparation of the losses or damages shall only comprise
those that fault. This rule may not be very clear, but is the only one possible in a The court here simply held that the injury to the child could not be considered as
matter more of the domain of prudence than of law. the probable consequence of an injury which could have been foreseen from the
act of the company's employee in leaving the ladder leaning against the tree.
In its decision of April 18, 1901, the supreme court of Spain said: "Neither were
the errors incurred that are mentioned in the third assignment, since the In De Alba vs. Sociedad Anonima de Tranvias (102 Juris, p., 928), a passenger
indemnity for damages is understood to apply to those caused the complainant was standing on the platform of a street car while it was in motion when, on
directly, and not to those which, indirectly and through more or less logical rounding a curve, the plaintiff fell off and under the car, thereby sustaining
deductions, may affect the interests of the Ayuntamiento de Viana, as occurs in severe injuries which took several months to heal. He was not allowed to
the present case where the increase of wealth concerns not only recover in the lower courts and on appeal the supreme court sustained the
the Ayuntamiento but also the provide and the state, yet, not on this account does inferior tribunals saying:
any action lie in their behalf as derived from the contracts with Urioste."
Whereas, considering the circumstances of the accident that happened
This doctrine is also affirmed in the more recent decision of March 18, 1909, in to D. Antonio Morales de Alba, such as they were held by the trail
the following words: "For the calculation of the damages claimed, it is necessary, court to have been proved, the evidence does not disclose that any
pursuant to the provisions of article 924 of the Law of Civil Procedure, to give liability whatever in the said accident, for acts or omissions, may be
due regard to the nature of the obligation that was unfulfilled and to the charged against the employees of the street car, as being guilty through
reasonable consequences of its nonfulfillment, because the conviction sought fault or negligence, since it was shown that the car was not traveling at
can be imposed only when there exists a natural and true relation between such any unusual speed nor was this increased on rounding the curve, but
nonfulfillment and damages, whatever, reason there may be to demand them on that the accident was solely due to the fact that the car in turning made
another account." a movement which caused the plaintiff to lose his balance; and whereas
no act whatever has been proved of any violation of the regulations, nor
In the case of Garcia Gamo vs. Compania Madrilena de Alumbrado, etc. (101 can it be required of street-car employees, who have to attend to their
Juris, p., 662), it appeared that an employee of the defendant company whose respective duties, that they should foresee and be on the alert to notify
duty it was to clean and light the street lamps left as stepladder leaning against a the possibility of danger when not greater than that which is more or
tree which stood in a public promenade. The seven-year old son of the plaintiff less inherent to this mode of travel; therefore the appeal can not be
climbed the tree by means of the ladder, and while endeavoring to cut some upheld, and with all the more reason since the passenger who takes the
branches fell to the ground, sustaining severe injuries which eventually caused risk of travelling on the platform, especially when there is an
his death. The plaintiff lost in the lower courts and on appeal to the supreme unoccupied seat in the car, should be on his guard against a
court the decision of those lower courts was affirmed with the following contingency so natural as that of losing his balance to a greater or less
statement; extent when the car rounds a curve.

That in this sense — aside from the fitness of the judgment appealed In Crespo vs. Garcia (112 Jurisp., 796), the plaintiff, a servant woman, 72 years
from, inasmuch as the acquittal of the defendant party resolves all the old, was injured in the performance of her duties by the sudden and unexpected
issues argued at the trial, if no counterclaim was made — the failure of the upper floor of a house in which she was working. The owner and
assignments of error in the appeal cannot be sustained, because, while the architect of the building were made defendants and after due trial it was held
the act of placing the stepladder against the tree in the manner and for that no responsibility attached to them for the failure of the floor, consequently
the purposes aforestated, was not permissible it was regularly allowed the plaintiff was not allowed to recover. On her appeal to the supreme court that
by the local authorities, and that fact did not precisely determine the tribunal said:
injury, which was due first to the abandonment of the child by his
Whereas the trial court held, in view of all the evidence adduced, including the foresees as likely to follow upon such conduct. This is only where the
expert and other testimony, that the act which occasioned the injury suffered by particular consequence is not known to have been intended or foreseen
Doña Maria Alonso Crespo, was accidental, without fault of anybody, and by the actor. If proof of that be forthcoming, whether the consequence
consequently fortuitous, and that, in so considering it to absolve the defendants, was "immediate" or not does not matter. That which a man actually
he did not incur the second error assigned on the appeal, because, without foresees is to him, at all events, natural and probable. (Webb's Pollock
overlooking the import and legal value of the affidavit adduced at the trial, he on Torts, p. 32.)
held that the defendants in their conduct were not liable for any omission that
might constitute such fault or negligence as would oblige them to indemnify the There is another line of definitions which have for their basis "the natural and
plaintiff; and to support the error assigned no legal provision whatever was cited probable consequences" or "the direct and immediate consequences" of the
such as would require a different finding, nor was any other authentic document defendant's act. (Joyce on Damages, sec. 82.)
produced than the aforesaid affidavit which contained an account of the ocular
inspection and the expert's report, which, as well as the testimony of the
It will be observed that the supreme court of Spain, in the above decisions, has
witnesses, the trial court was able to pass upon in accordance with its exclusive
rather inclined to this line of definitions of what results a defendant is liable for
power-all points of proof which do not reveal any mistake on the part of the as a consequence of his wrongful acts, while the Civil Code uses the
judge, whose opinion the appellant would substitute with his own by a different phraseology, "those foreseen or which may have been foreseen." From either
interpretation.
viewpoint the method of arriving at the liability of the wrongdoer under the Civil
Code and under the Anglo Saxon law is the same. Such was the holding of this
These authorities are sufficient to show that liability for acts ex delicto under the court in Taylor vs. M. E. R. and L. Co. (16 Phil. Rep., 8, 15):
Civil Code is precisely that embraced within the "proximate cause" of the
Anglo-Saxon law of torts. 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
The general rule, as frequently stated, is that in order that an act omission may action such as that under consideration, in order to establish his right to
be the proximate cause of an injury, the injury must be the natural and probable a recovery, must establish by competent evidence:
consequence of the act or omission and such as might have been foreseen by an
ordinarily responsible and prudent man, in the light of the attendant
(1) Damages to the plaintiff.
circumstances, as likely to result therefrom . . .
(2) Negligence by act or omission of which defendant personally, or
According to the latter authorities foreseeableness, as an element of proximate some person for whose acts it must respond, was guilty.
cause, does not depend upon whether an ordinarily reasonable and prudent man
would or ought in advance to have anticipated the result which happened, but
whether, if such result and the chain of events connecting it with the act (3) The connection of cause and effect between the negligence and the
complained of had occurred to his mind, the same would have seemed natural damages.
and probable and according to the ordinary course of nature. Thus, as said in one
case, "A person guilty of negligence, or an unlawful act, should be held These propositions are, of course, elementary, and do not admit of
responsible for all the consequences which a prudent and experienced man, fully discussion, the real difficulty arising in the application of these
acquainted with all the circumstances which in fact existed, would at the time of principles to the particular facts developed in the case under
the negligent or unlawful act have thought reasonable to follow, if they had consideration.
occurred to his mind." (Wabash R. etc. Co. vs. Coker, 81 Ill. App. 660, 664;
Cooley on Torts, sec. 15.) Parenthetically it may be said that we are not now dealing with the doctrine of
comparative (contributory) negligence which was established by Rakes vs. A. G.
The view which I shall endeavor to justify is that, for the purpose of and P. Co. (7 Phil. Rep., 359), and Eades vs. A. G. and P. Co. (19 Phil., Rep.,
civil liability, those consequences, and those only, are deemed 561.)
"immediate," "proximate," or, to anticipate a little, "natural and
probable," which a person of average competence and knowledge, The rules for the measure of damages, once that liability is determined, are,
being in the like case with the person whose conduct is complained of, however, somewhat different. The Civil Code requires that the defendant repair
and having the like opportunities of observation, might be expected to the damage caused by his fault or negligence. No distinction is made therein
between damage caused maliciously and intentionally and damages caused was committed maliciously — that is, with evil intention — or not.
through mere negligence in so far as the civil liability of the wrongdoer in (Wimer vs. Allbaugh, 78 Iowa, 79; 42 N. W., 587; 16 Am. St. Rep.,
concerned. Nor is the defendant required to do more than repair the damage 422.)
done, or, in other words, to put the plaintiff in the same position, so far as
pecuniary compensation can do so, that he would have been in had the damage Finally, this court has itself held that actual damages are the extent of the
not been inflicted. In this respect there is a notable difference between the two recovery allowed to the plaintiff. In Marker vs. Garcia (5 Phil., Rep., 557),
systems. Under the Anglo-SAxon law, when malicious or willful intention to which was an action for damages for breach of contract, this court said: "Except
cause the damage is an element of the defendant's act, it is quite generally in those cases where the law authorizes the imposition of punitive or exemplary
regarded as an aggravating circumstance for which the plaintiff is entitled to damages, the party claiming damages must establish by competent evidence the
more than mere compensation for the injury inflicted. These are called amount of such damages, and courts can not give judgment for a greater amount
exemplary or punitive damages, and no provision is made for them in article than those actually proven."
1902 of the Civil Code.
We are of the opinion that the requirements of article 1902, that the defendant
Again it is quite common under the English system to award what is called repair the damage done can only mean what is set forth in the above definitions,
nominal damages where there is only a technical violation of the plaintiff's rights Anything short of that would not repair the damages and anything beyond that
resulting in no substantial injury to him. This branch of damages is also would be excessive. Actual compensatory damages are those allowed for
unknown under the Civil Code. If no damages have actually occurred there can tortious wrongs under the Civil Code; nothing more, nothing less.
be none to repair and the doctrine of nominal damages is not applicable. Thus it
has been often held by the supreme court of Spain that a mere noncompliance According to the text of article 1106 of the Civil Code, which, according to the
with the obligations of a contract is not sufficient to sustain a judgment for decision of February 7, 1990 (referred to above), is the generic conception of
damages. It must be shown that damages actually existed. (Decision of February
what article 1902 embraces, actual damages include not only loss already
10, 1904.) Again, in its decision of January 9, 1897, that high tribunal said that
suffered, but loss of profits which may not have been realized. The allowance of
as a logical consequence of the requirements of articles 1101, 1718, and 1902
loss of prospective profits could hardly be more explicitly provided for. But it
that he who causes damages must repair them, their existence must be proved.
may not be amiss to refer to the decisions of the supreme court of Spain for its
interpretation of this article. The decisions are numerous upon this point. The
In at least one case decided by this court we held in effect that nominal damages decisions are as epitomized by Sanchez Roman (vol. 1, 0. 281), interprets article
could not be allowed. (Mercado vs. Abangan, 10 Phil., Rep., 676.) 1106 as follows:

The purpose of the law in awarding actual damages is to repair the Pursuant to articles 1106 and 1107 of the same Code, which govern in general
wrong that has been done, to compensate for the injury inflicted, and the matter of indemnity due for the nonfulfillment of obligations, the indemnity
not to impose a penalty. Actual damages are not dependent on nor comprises, not only the value of loss suffered, but also that of the prospective
graded by the intent with which the wrongful act is done." profit that was not realized, and the obligation of the debtor in good faith is
(Field vs. Munster, 11 Tex. Civ., Appl., 341, 32 S. W., 417.) "The limited to such losses and damages as were foreseen or might have been
words "actual damages" shall be construed to include all damages that foreseen at the time the obligation was incurred and which are a necessary
the plaintiff may he has suffered in respect to his property, business, consequence of his failure of fulfillment. Losses and damages under such
trade, profession, or occupation, and no other damages whatever." (Gen limitations and frustrated profits must, therefore, be proved directly by means of
Stat. Minn. 1894, sec., 5418.) "Actual damages are compensatory the evidence the law authorizes.
only." (Lord, Owen and Co. vs. Wood, 120 Iowa, 303, 94 N. W., 842.)
" `Compensatory damages' as indicated by the word employed to
The decisions of January 8, 1906 (published in 14 Jurisp. del Codigo Civil, 516)
characterize them, simply make good or replace the loss caused by the had to do with the following case: The plaintiff, a painter by occupation, was
wrong. They proceed from a sense of natural justice, and are designed engaged to paint the poles from which were suspended the trolley wires of a
to repair that of which one has been deprived by the wrong of another."
traction company. While at work on February 8, 1901, the electric current was
(Reid vs.Terwilliger, 116 N. Y., 530; 22 N. E., 1091.) "Compensatory
negligently turned on by the company, whereby plaintiff received a severe shock,
damages' are such as awarded to compensate the injured party for
causing him to fall to the ground. Plaintiff sustained injuries which took several
caused by the wrong, and must be only such as make just and fair
months to heal and his right arm was permanently disabled by the accident. The
compensation, and are due when the wrong is established, whether it
age of the plaintiff is not stated. His daily wage was four pesetas. He was fair preponderance of that evidence, it is our duty to reverse or set aside the
awarded 25,000 pesetas by the trial court and this judgment was affirmed on findings of fact made by the trial court and render such judgment as the facts of
appeal to the supreme court. This was equivalent to approximately twenty year's the same deem to us to warrant. (Code of Civ., Proc., sec. 496.) We need go to
salary. no other branch of law than that of damages to support this statement. In the
following case the damages awarded by the lower court were reduced after a
In its decision of January 15, 1902 (published in 10 Jurisp. del Codigo Civil., consideration of the evidence; Sparrevohn vs. Fisher (2 Phil. Rep., 676);
260), the supreme court had the following case under consideration: Plaintiff's Campbell and Go-Tauco vs. Behn, Meyer and Co. (3 Phil., Rep., 590);
son was a travelling salesman 48 years of age, who received an annual salary of Causin vs. Jakosalem 95 Phil., Rep., 155); Marker vs.Garcia (5 Phil., Rep., 557);
2,500 pesetas and expenses. While travelling on defendant's train an accident Uy Piaoco vs. Osmeña (9 Phil., Rep., 299); Macleod vs. Phil. Pub. Co. (12 Phil.,
occurred which caused his death. The accident was held to be due to the failure Rep., 427); Orense vs. Jaucian (18 Phil. Rep., 553). In Rodriguez vs. Findlay and
of the defendant company to keep its track and roadbed in good repair. Plaintiff Co. (14 Phil. Rep., 294); and Cordoba y Conde vs. Castle Bros. (18 Phil. Rep.,
was allowed 35,000 pesetas for the death of her son. this would be equivalent to 317), the damages awarded by the lower court were increased on appeal after a
about fourteen years' salary. consideration of the evidence. In Brodek vs. Larson (18 Phil., Rep., 425), it was
held that the damages awarded by the lower court were base on too uncertain
in the case dated October 19, 1909 (published in 116 Jurisp. del Codigo Civil, evidence, and the case was remanded for a new trial as to the amount of
damages sustained. Also in Saldivar vs. Municipality of Talisay (18 Phil., Rep.,
120), plaintiff as suing for the death of his son caused from injuries inflicted by
362), where the lower court exonerated the defendant from liability, this court,
the defendant's bull while plaintiff and his son were travelling along a public
after a consideration of the evidence, held that the defendant was liable and
road. The age of the son is not given. Plaintiff was awarded 3,000 pesetas
remanded the case for the purpose of a new trial in order to ascertain the amount
damages.
of damages sustained.
In each of the above-mentioned cases the supreme court refused to pass on the
In this respect the law of damages under article 1902, as laid down by the
amount of damages which had been awarded. It appears to be the unvarying rule
decisions of the supreme court of Spain, has been indirectly modified by the
of the supreme court of Spain to accept the amount of damages awarded by trial
present Code of Civil Procedure so that the finding of the lower court as to the
courts, its only inquiry being as to whether damages have actually occurred as
the result of the defendant's fault or negligence. (Decision of July 5, 1909.) The amount of damages is not conclusive on appeal.
reason why the supreme court of Spain refuses to consider the amount of
damages awarded is to be found in the great importance attached by it to the Actual damages, under the American system, include pecuniary recompense for
provision of the Ley de Enjuiciamiento Civil, articles 659 and 1692, No. 7. In its pain and suffering, injured feelings, and the like. Article 1902, as interpreted by
auto of March 16, 1900 (published in 8 Jurisp. del Codigo Civil, 503), the this court in Marcelo vs. Velasco (11 Phil., Rep., 287), does not extend to such
following comment is made on these articles: incidents. Aside from this exception, actual damages, in this jurisdiction, in the
sense that they mean just compensation for the loss suffered, are practically
synonymous with actual damages under the American system.
As this supreme court has repeatedly held, the weight given by the trial
judge to the testimony, with good discernment or otherwise, can not be
a matter for reversal, not even with the support of No. 7 of article 1692 This court has already gone some distance in incorporating into our
of the Ley de Enjuiciamiento Civil, as it is exclusively submitted to him, jurisprudence those principles of the American law of actual damages which are
pursuant to the provisions of article 659 of the said law and article 1248 of a general and abstract nature. In Baer Senior and Co.'s
of the Code. Successors vs.Compañia Maritima (6 Phil. Rep., 215), the American principle of
admiralty law that the liability of the ship for a tow is not so great as that for her
cargo was applied in determining the responsibility of a ship, under the Code of
The practice of this court, under our Code of Civil Procedure, does not permit of
our going to such lengths in sustaining the findings of fact in trial courts. We Commerce, for her tow. In Rodriguez, vs. Findlay and Co. (14 Phil., Rep., 294),
have repeatedly held that due weight will be given in this court to the findings of which was an action for breach of contract of warranty, the following principle,
supported entirely by American authority, was used in computing the amount of
fact by trial courts by reason of their opportunities to see and hear the witnesses
damages due the plaintiff:
testify, note their demeanor and bearing upon the stand, etc., but when the
decision of the trial court, after permitting due allowance for its superior
advantages in weighing the evidence of the case, appears to us to be against the The damages recoverable of a manufacturer or dealer for the breach of
warranty of machinery, which he contracts to furnish, or place in
operation for a known purpose are not confined to the difference in while the complexity of human affairs is such that two cases are seldom exactly
value of the machinery as warranted and as it proves to be, but includes alike, a thorough discussion of each case may permit of their more or less
such consequential damages as are the direct, immediate, and probable definite classification, and develop leading principles which will be of great
result of the breach. assistance to a court in determining the question, not only of damages, but of the
prior one of negligence. We are of the opinion that as the Code is so indefinite
In Aldaz vs. Gay (7 Phil., Rep., 268), it was held that the earnings or possible (even though from necessity) on the subject of damages arising from fault or
earnings of a workman wrongfully discharged should be considered in negligence, the bench and bar should have access to and avail themselves of
mitigation of his damages for the breach of contract by his employer, with the those great, underlying principles which have been gradually and conservatively
remark that nothing had been brought to our attention to the contrary under developed and thoroughly tested in Anglo-Saxon courts. A careful and
Spanish jurisprudence. intelligent application of these principles should have a tendency to prevent
mistakes in the rulings of the court on the evidence offered, and should assist in
determining damages, generally, with some degree of uniformity.
In Fernandez vs. M. E. R. and L. Co. (14 Phil., Rep., 274), a release or
compromise for personal injury sustained by negligence attributed to the
defendant company was held a bar to an action for the recovery of further The law of damages has not, for some reason, proved as favorite a theme with
damages, on the strength of American precedents. the civil-law writers as with those of the common-law school. The decisions of
the supreme court of Spain, though numerous on damages arising from
contractual obligations, are exceedingly few upon damages for personal injuries
In Taylor vs. M. E. R. and L. Co., supra, in the course of an extended reference
arising ex delicto. The reasons for this are not important to the present
to American case law, the doctrine of the so-called "Turntable" and "Torpedo"
cases was adopted by this court as a factor in determining the question of discussion. It is sufficient to say that the law of damages has not received the
liability for damages in such cases as the one the court the then had under elaborate treatment that it has at the hands of the Anglo-Saxon jurists. If we in
this jurisdiction desire to base our conclusions in damage cases upon controlling
consideration.
principles, we may develop those principles and incorporate them into our
jurisprudence by that difficult and tedious process which constitutes the
In Martinez vs. Van Buskirk (18 Phil., 79), this court, after remarking that the centuries-old history of Anglo-Saxon jurisprudence; or we may avail ourselves
rules under the Spanish law by which the fact of negligence is determined are, of these principles in their present state of development without further effort
generally speaking, the same as they are in Anglo-Saxon countries, approved the than it costs to refer to the works and writings of many eminent text-writers and
following well-known rule of the Anglo-Saxon law of negligence, relying jurists. We shall not attempt to say that all these principles will be applicable in
exclusively upon American authorities: ". . . acts, the performance of which has this jurisdiction. It must be constantly borne in mind that the law of damages in
not proven destructive or injurious and which have been generally acquiesced in this jurisdiction was conceived in the womb of the civil law and under an
by society for so long a time as to have ripened into a custom, cannot be held to entirely different form of government. These influences have had their effect
be unreasonable or imprudent and that, under the circumstances, the driver was upon the customs and institutions of the country. Nor are the industrial and
not guilty of negligence in so leaving his team while assisting in unloading his social conditions the same. An Act which might constitute negligence or damage
wagon. here, and vice versa. As stated in Story on Bailments, section 12, "It will thence
follow that, in different times and in different countries, the standard (of
This court does not, as a rule, content itself in the determination of cases brought diligence) is necessary variable with respect to the facts, although it may be
before it, with a mere reference to or quotation of the articles of the codes or uniform with respect to the principle. So that it may happen that the same acts
laws applicable to the questions involved, for the reason that it is committed to which in one country or in one age may be deemed negligent acts, may at
the practice of citing precedents for its rulings wherever practicable. (See another time or in another country be justly deemed an exercise of ordinary
Ocampo vs. Cabangis, 15 Phil Rep., 626.) No better example of the necessity of diligence."
amplifying the treatment of a subject given in the code is afforded than article
1902 of the Civil Code. That article requires that the defendant repair the The abstract rules for determining negligence and the measure of damages are,
damage done. There is, however, a world of difficulty in carrying out the however, rules of natural justice rather than man-made law, and are applicable
legislative will in this particular. The measure of damages is an ultimate fact, to under any enlightened system of jurisprudence. There is all the more reason for
be determined from the evidence submitted to the court. The question is our adopting the abstract principles of the Anglo- Saxon law of damages, when
sometimes a nice one to determine, whether the offered evidence in such as we consider that there are at least two important laws o n our statute books of
sought to be considered by the court in fixing the quantum of damages; and American origin, in the application of which we must necessarily be guided by
American authorities: they are the Libel Law (which, by the way, allows had invaded his territory, and upon becoming physically able to attend to his
damages for injured feelings and reputation, as well as punitive damages, in a business, he found that would be necessary to start with practically no regular
proper case), and the Employer's Liability Act. trade, and either win back his old customers from his competitors or else secure
others. During this process of reestablishing his patronage his income would
The case at bar involves actual incapacity of the plaintiff for two months, and necessarily be less than he was making at the time of the accident and would
loss of the greater portion of his business. As to the damages resulting from the continue to be so for some time. Of course, if it could be mathematically
actual incapacity of the plaintiff to attend to his business there is no question. determined how much less he will earn during this rebuilding process than he
They are, of course, to be allowed on the basis of his earning capacity, which in would have earned if the accident had not occurred, that would be the amount he
this case, is P50 per month. the difficult question in the present case is to would be entitled to in this action. But manifestly this ideal compensation cannot
determine the damage which has results to his business through his enforced be ascertained. The question therefore resolves itself into whether this damage to
absence. In Sanz vs. Lavin Bros. (6 Phil. Rep., 299), this court, citing numerous his business can be so nearly ascertained as to justify a court in awarding any
decisions of the supreme court of Spain, held that evidence of damages "must amount whatever.
rest upon satisfactory proof of the existence in reality of the damages alleged to
have been suffered." But, while certainty is an essential element of an award of When it is shown that a plaintiff's business is a going concern with a fairly
damages, it need not be a mathematical certainty. That this is true is adduced not steady average profit on the investment, it may be assumed that had the
only from the personal injury cases from the supreme court of Spain which we interruption to the business through defendant's wrongful act not occurred, it
have discussed above, but by many cases decided by this court, reference to would have continued producing this average income "so long as is usual with
which has already been made. As stated in Joyce on Damages, section 75, "But things of that nature." When in addition to the previous average income of the
to deny the injured party the right to recover any actual damages in cases f torts business it is further shown what the reduced receipts of the business are
because they are of such a nature a cannot be thus certainly measured, would be immediately after the cause of the interruption has been removed, there can be
to enable parties to profit by and speculate upon their own wrongs; such is not no manner of doubt that a loss of profits has resulted from the wrongful act of
the law." the defendant. In the present case, we not only have the value of plaintiff's
business to him just prior to the accident, but we also have its value to him after
As to the elements to be considered in estimating the damage done to plaintiff's the accident. At the trial, he testified that his wife had earned about fifteen pesos
business by reason of his accident, this same author, citing numerous authorities, during the two months that he was disabled. That this almost total destruction of
has the following to say: It is proper to consider the business the plaintiff is his business was directly chargeable to defendant's wrongful act, there can be no
engaged in, the nature and extent of such business, the importance of his manner of doubt; and the mere fact that the loss can not be ascertained with
personal oversight and superintendence in conducting it, and the consequent loss absolute accuracy, is no reason for denying plaintiff's claim altogether. As stated
arising from his inability to prosecure it. in one case, it would be a reproach to the law if he could not recover damages at
all. (Baldwin vs. Marquez, 91 Ga., 404)
The business of the present plaintiff required his immediate supervision. All the
profits derived therefrom were wholly due to his own exertions. Nor are his Profits are not excluded from recovery because they are profits; but
damages confined to the actual time during which he was physically when excluded, it is on the ground that there are no criteria by which to
incapacitated for work, as is the case of a person working for a stipulated daily estimate the amount with the certainty on which the adjudications of
or monthly or yearly salary. As to persons whose labor is thus compensated and courts, and the findings of juries, should be based.
who completely recover from their injuries, the rule may be said to be that their (Brigham vs. Carlisle (Ala.), 56 Am. Rep., 28, as quoted in
damages are confined to the duration of their enforced absence from their Wilson vs. Wernwag, 217 Pa., 82.)
occupation. But the present plaintiff could not resume his work at the same
profit he was making when the accident occurred. He had built up an The leading English case on the subject is Phillips vs. London and Southwestern
establishing business which included some twenty regular customers. These Ry. Co. (5 Q. B. D., 788; 41 L.T., 121; 8 Eng. Rul. Cases, 447). The plaintiff
customers represented to him a regular income. In addition to this he made sales was a physician with a very lucrative practice. In one case he had received a fee
to other people who were not so regular in their purchases. But he could figure of 5,000 guineas; but it appeared that his average income was between 6,000 and
on making at least some sales each month to others besides his regular 7,000 pounds sterling per year. The report does not state definitely how serious
customers. Taken as a whole his average monthly income from his business was plaintiff's injuries were, but apparently he was permanently disabled. The
about P50. As a result of the accident, he lost all but four of his regular following instruction to the jury was approved, and we think should be set out in
customers and his receipts dwindled down to practically nothing. Other agents this opinion as applicable to the present case:
You cannot put the plaintiff back again into his original position, but you must compensating the party injured is to ascertain how much less valuable
bring your reasonable common sense to bear, and you must always recollect that the business was by reason of the interruption, and allow that as
this is the only occasion on which compensation can be given. Dr. Philips can damages. This gives him only what the wrongful act deprived him of.
never sue again for it. You have, therefore, not to give him compensation a The value of such a business depends mainly on the ordinary profits
wrong at the hands of the defendants, and you must take care o give him full, derived from it. Such value cannot be ascertained without showing
fair compensation. for that which he has suffered. what the usual profits are; nor are the ordinary profits incident to such a
business contingent or speculative, in the sense that excludes profits
The jury's award was seven thousand pounds. Upon a new trial, on the ground of from consideration as an element of damages. What they would have
the insufficiency of the damages awarded, plaintiff received 16,000 pounds. On been, in the ordinary course of the business, for a period during which
the second appeal, Bramwell, L. J., put the case of a laborer earning 25 shillings it was interrupted, may be shown with reasonable certainty. What effect
a week, who, on account of injury, was totally incapacitated for work for extraordinary circumstances would have had upon the business might
twenty-six weeks, and then for ten weeks could not earn more than ten shillings be contingent and conjectural, and any profits anticipated from such
a week, and was not likely to get into full work for another twenty weeks. The cause would be obnoxious to the objection that they are merely
proper measure of damages would be in that case 25 shillings a week twenty-six speculative; but a history of the business, for a reasonable time prior to
weeks, plus 15 shillings a week for the ten and twenty weeks, and damages for a period of interruption, would enable the jury to determine how much
bodily suffering and medical expenses. Damages for bodily suffering, of course, would be done under ordinary circumstances, and in the usual course,
are not, for reasons stated above, applicable to this jurisdiction; otherwise we during the given period; and the usual rate of profit being shown, of
believe this example to be the ideal compensation for loss of profits which course the aggregate becomes only a matter of calculation.
courts should strike to reach, in cases like the present.
In the very recent case of Wellington vs. Spencer (Okla., 132 S. W., 675),
In Joslin vs. Grand Rapids Ice and Coal Co. (53 Mich., 322), the court said: "The plaintiff had rented a building from the defendant and used it as a hotel.
plaintiff, in making proof of his damages, offered testimony to the effect that he Defendant sued out a wrongful writ of attachment upon the equipment of the
was an attorney at law of ability and in good standing, and the extent and value plaintiff, which caused him to abandon his hotel business. After remarking that
of his practice, and that, in substance, the injury had rendered him incapable of the earlier cases held that no recovery could be had for prospective profits, but
pursuing his profession. This was objected to as irrelevant, immaterial and that the later authorities have held that such damages may be allowed when the
incompetent. We think this was competent. It was within the declaration that his amount is capable of proof, the court had the following to say:
standing in his profession was such as to command respect, and was proper to be
shown, and his ability to earn, and the extent of his practice, were a portion of Where the plaintiff has just made his arrangements to begin business,
the loss he had sustained by the injury complained of. There was no error in and he is prevented from beginning either by tort or a breach of
permitting this proof, and we further think it was competent, upon the question contract, or where the injury is to a particular subject matter, profits of
of damages under the evidence in this case, for the plaintiff to show, by Judge which are uncertain, evidence as to expected profits must be excluded
Hoyt, as was done, that an interruption in his legal business and practice for from the jury because of the uncertainty. There is as much reason to
eight months was a damage to him. It seems to have been a part of the legitimate believe that there will be no profits as to believe that there will be no
consequences of the plaintiff's injury." profits, but no such argument can be made against proving a usual
profit of an established business. In this case the plaintiff, according to
In Luck vs. City of Ripon (52 Wis., 196), plaintiff was allowed to prevent that his testimony, had an established business, and was earning a profit in
she was a midwife and show the extent of her earnings prior to the accident in the business, and had been doing that for a sufficient length of time that
order to establish the damage done to her business. evidence as to prospective profits was not entirely speculative. Men
who have been engaged in business calculate with a reasonable
certainty the income from their business, make their plans to live
The pioneer case of Gobel vs. Hough (26 Minn., 252) contains perhaps one of
the clearest statements of the rule and is generally considered as one of the accordingly, and the value of such business is not a matter of
leading cases on this subject. In that case the court said: speculation as to exclude evidence from the jury.

A good example of a business not established for which loss of profits will be
When a regular and established business, the value of which may be
allowed may be found in the States vs.Durkin (65 Kan., 101). Plaintiffs formed a
ascertained, has been wrongfully interrupted, the true general rule for
partnership, and entered the plumbing business in the city of Topeka in April. In
July of the same year, they brought an action against a plumbers' association on its former proportions; so that at some time in the future his commissions will
the ground that the latter had formed an unlawful combination in restraint of equal those he was receiving when the accident occurred. Aided by his
trade and prevented them from securing supplies for their business within a experience, he should be able to rebuild this business to its former proportions in
reasonable time. The court said: much less time than it took to establish it as it stood just prior to the accident.
One year should be sufficient time in which to do this. The profits which
In the present case the plaintiffs had only been in business a short time plaintiff will receive from the business in the course of its reconstruction will
— not so long that it can be said that they had an established business. gradually increase. The injury to plaintiff's business begins where these profits
they had contracted three jobs of plumbing, had finished two, and lost leave off, and, as a corollary, there is where defendant's liability begins. Upon
money on both; not, however, because of any misconduct or wrongful this basis, we fix the damages to plaintiff's business at P250.
acts on the part of the defendants or either of them. They carried no
stock in trade, and their manner of doing business was to secure a The judgment of the lower court is set aside, and the plaintiff is awarded the
contract and then purchase the material necessary for its completion. It following damages; ten pesos for medical expenses; one hundred pesos for the
is not shown that they had any means or capital invested in the business two months of his enforced absence from his business; and two hundred and
other than their tools. Neither of them had prior thereto managed or fifty pesos for the damage done to his business in the way of loss of profits, or a
carried on a similar business. Nor was it shown that they were capable total of three hundred and sixty pesos. No costs will be allowed in this instance.
of so managing this business as to make it earn a profit. There was little
of that class of business being done at the time, and little, if any, profit
derived therefrom. The plaintiffs' business lacked duration, permanency, G.R. No. 107518 October 8, 1998
and recognition. It was an adventure, as distinguished from an PNOC SHIPPING AND TRANSPORT CORPORATION, petitioner,
established business. Its profits were speculative and remote, existing vs. HONORABLE COURT OF APPEALS and MARIA EFIGENIA
only in anticipation. The law, with all its vigor and energy in its effort
FISHING CORPORATION, respondents.
to right or wrongs and damages for injuries sustained, may not enter
into a domain of speculation or conjecture. In view of the character and
condition of the plaintiffs' business, the jury had not sufficient evidence A party is entitled to adequate compensation only for such pecuniary loss
from which to ascertain profits. actually suffered and duly proved.1Indeed, basic is the rule that to recover actual
damages, the amount of loss must not only be capable of proof but must actually
be proven with a reasonable degree of certainty, premised upon competent proof
Other cases which hold that the profits of an established business may be
or best evidence obtainable of the actual amount thereof.2 The claimant is duty-
considered in calculating the measure of damages for an interruption of it are:
bound to point out specific facts that afford a basis for measuring whatever
Wilkinson vs. Dunbar (149 N. C., 20); Kinney vs. Crocker (18 Wis., 80);
compensatory damages are borne.3 A court cannot merely rely on speculations,
Sachra vs. Manila (120 la., 562); Kramer vs. City of Los Angeles (147 Cal., 668);
conjectures, or guesswork as to the fact and amount of damages 4 as well as
Mugge vs. Erkman (161 Ill. App., 180); Fredonia Gas Co. vs. Bailey 977 Kan.,
hearsay5or uncorroborated testimony whose truth is suspect. 6 Such are the
296); Morrow vs. Mo. Pac. R. Co. (140 Mo. App., 200); City of
jurisprudential precepts that the Court now applies in resolving the instant
Indianapolis vs. Gaston (58 Ind., 24); National Fibre Board vs. Auburn Electric
petition.
Light Co. (95 Me., 318); Sutherland on Damages, sec. 70.

The records disclose that in the early morning of September 21, 1977, the M/V
We have now outlined the principles which should govern the measure of
Maria Efigenia XV, owned by private respondent Maria Efigenia Fishing
damages in this case. We are of the opinion that the lower court had before it
Corporation, was navigating the waters near Fortune Island in Nasugbu,
sufficient evidence of the damage to plaintiff's business in the way of
Batangas on its way to Navotas, Metro Manila when it collided with the
prospective loss of profits to justify it in calculating his damages as to his item.
vessel Petroparcel which at the time was owned by the Luzon Stevedoring
That evidence has been properly elevated to this court of review. Under section
Corporation (LSC).
496 of the Code of Civil Procedure, we are authorized to enter final judgment or
direct a new trial, as may best subserve the ends of justice. We are of the opinion
that the evidence presented as to the damage done to plaintiff's business is After investigation was conducted by the Board of Marine Inquiry, Philippine
credible and that it is sufficient and clear enough upon which to base a judgment Coast Guard Commandant Simeon N. Alejandro rendered a decision finding
for damages. Plaintiff having had four years' experience in selling goods on the Petroparcel at fault. Based on this finding by the Board and after
commission, it must be presumed that he will be able to rebuild his business to unsuccessful demands on petitioner, 7 private respondent sued the LSC and
the Petroparcelcaptain, Edgardo Doruelo, before the then Court of First Instance 4. On the same date on 2 April 1979 (sic), defendant PNOC STC again entered
of Caloocan City, paying thereto the docket fee of one thousand two hundred into an Agreement of Transfer with co-defendant Lusteveco whereby all the
fifty-two pesos (P1,252.00) and the legal research fee of two pesos (P2.00). 8 In business properties and other assets appertaining to the tanker and bulk oil
particular, private respondent prayed for an award of P692,680.00, allegedly departments including the motor tanker LSCO Petroparcel of defendant
representing the value of the fishing nets, boat equipment and cargoes of M/V Lusteveco were sold to PNOC STC.
Maria Efigenia XV, with interest at the legal rate plus 25% thereof as attorney's
fees. Meanwhile, during the pendency of the case, petitioner PNOC Shipping 5. The aforesaid agreement stipulates, among others, that PNOC-STC assumes,
and Transport Corporation sought to be substituted in place of LSC as it had without qualifications, all obligations arising from and by virtue of all rights it
already acquired ownership of the Petroparcel. 9 obtained over the LSCO "Petroparcel".

For its part, private respondent later sought the amendment of its complaint on 6. On 6 July 1979, another agreement between defendant LUSTEVECO and
the ground that the original complaint failed to plead for the recovery of the lost PNOC-STC was executed wherein Board of Marine Inquiry Case No. 332
value of the hull of M/V Maria Efigenia XV. 10Accordingly, in the amended (involving the sea accident of 21 September 1977) was specifically identified
complaint, private respondent averred that M/V Maria Efigenia XV had an actual and assumed by the latter.
value of P800,000.00 and that, after deducting the insurance payment of
P200,000.00, the amount of P600,000.00 should likewise be claimed. The
7. On 23 June 1979, the decision of Board of Marine Inquiry was affirmed by
amended complaint also alleged that inflation resulting from the devaluation of
the Ministry of National Defense, in its decision dismissing the appeal of Capt.
the Philippine peso had affected the replacement value of the hull of the vessel,
Edgardo Doruelo and Chief mate Anthony Estenzo of LSCO "Petroparcel".
its equipment and its lost cargoes, such that there should be a reasonable
determination thereof. Furthermore, on account of the sinking of the vessel,
private respondent supposedly incurred unrealized profits and lost business 8. LSCO "Petroparcel" is presently owned and operated by PNOC-STC and
opportunities that would thereafter be proven. 11 likewise Capt. Edgardo Doruelo is still in their employ.

Subsequently, the complaint was further amended to include petitioner as a 9. As a result of the sinking of M/V Maria Efigenia caused by the reckless and
defendant 12 which the lower court granted in its order of September 16, imprudent manner in which LSCO Petroparcel was navigated by defendant
1985. 13 After petitioner had filed its answer to the second amended complaint, Doruelo, plaintiff suffered actual damages by the loss of its fishing nets, boat
on February 5, 1987, the lower court issued a pre-trial order 14 containing, equipments (sic) and cargoes, which went down with the ship when it sank the
among other things, a stipulations of facts, to wit: replacement value of which should be left to the sound discretion of this
Honorable Court.
1. On 21 September 1977, while the fishing boat "M/V MARIA EFIGENIA"
owned by plaintiff was navigating in the vicinity of Fortune Island in Nasugbu, After trial, the lower court 15 rendered on November 18, 1989 its decision
Batangas, on its way to Navotas, Metro Manila, said fishing boat was hit by the disposing of Civil Case No. C-9457 as follows:
LSCO tanker "Petroparcel" causing the former to sink.
WHEREFORE, and in view of the foregoing, judgment is hereby rendered in
2. The Board of Marine Inquiry conducted an investigation of this marine favor of the plaintiff and against the defendant PNOC Shipping & Transport
accident and on 21 November 1978, the Commandant of the Philippine Coast Corporation, to pay the plaintiff:
Guard, the Honorable Simeon N. Alejandro, rendered a decision finding the
cause of the accident to be the reckless and imprudent manner in which Edgardo a. The sum of P6,438,048.00 representing the value of the fishing boat with
Doruelo navigated the LSCO "Petroparcel" and declared the latter vessel at fault. interest from the date of the filing of the complaint at the rate of 6% per annum;

3. On 2 April 1978, defendant Luzon Stevedoring Corporation (LUSTEVECO), b. The sum of P50,000.00 as and for attorney's fees; and
executed in favor of PNOC Shipping and Transport Corporation a Deed of
Transfer involving several tankers, tugboats, barges and pumping stations, c. The costs of suit.
among which was the LSCO Petroparcel.
The counterclaim is hereby DISMISSED for lack of merit. Likewise, the case Model FR-604D, would cost P100,000.00 while a unit of Furuno Color Video
against defendant Edgardo Doruelo is hereby DISMISSED, for lack of Sounder, Model FCV-501 would cost P45,000.00 so that the two units would
jurisdiction. cost P145,000.00;

SO ORDERED. (f) Exhibit F — quotation of prices issued by Seafgear Sales, Inc. on January 21,
1987 to Del Rosario showing that two (2) rolls of nylon rope (5" cir. X 300fl.)
In arriving at the above disposition, the lower court cited the evidence presented would cost P140,000.00; two (2) rolls of nylon rope (3" cir. X 240fl.),
by private respondent consisting of the testimony of its general manager and P42,750.00; one (1) binocular (7 x 50), P1,400.00, one (1) compass (6"),
sole witness, Edilberto del Rosario. Private respondent's witness testified P4,000.00 and 50 pcs. of floats, P9,000.00 or a total of P197,150.00;
that M/V Maria Efigenia XV was owned by private respondent per Exhibit A, a
certificate of ownership issued by the Philippine Coast Guard showing that M/V (g) Exhibit G — retainer agreement between Del Rosario and F. Sumulong
Maria Efigenia XV was a wooden motor boat constructed in 1965 with 128.23 Associates Law Offices stipulating an acceptance fee of P5,000.00, per
gross tonnage. According to him, at the time the vessel sank, it was then appearance fee of P400.00, monthly retainer of P500.00, contingent fee of 20%
carrying 1,060 tubs (bañeras) of assorted fish the value of which was never of the total amount recovered and that attorney's fee to be awarded by the court
recovered. Also lost with the vessel were two cummins engines (250 should be given to Del Rosario; and
horsepower), radar, pathometer and compass. He further added that with the loss
of his flagship vessel in his fishing fleet of fourteen (14) vessels, he was (h) Exhibit H — price quotation issued by Seafgear Sales, Inc. dated April 10,
constrained to hire the services of counsel whom he paid P10,000 to handle the 1987 to Del Rosario showing the cost of poly nettings as: 50 rolls of 400/18 3kts.
case at the Board of Marine Inquiry and P50,000.00 for commencing suit for 100md x 100mtrs., P70,000.00; 50 rolls of 400/18 5kts. 100md x 100mtrs.,
damages in the lower court. P81,500.00; 50 rolls of 400/18 8kts. 100md x 100mtrs., P116,000.00, and 50
rolls of 400/18 10kts. 100md x 100mtrs., P146,500 and bañera (tub) at P65.00
As to the award of P6,438,048.00 in actual damages, the lower court took into per piece or a total of P414,065.00.
account the following pieces of documentary evidence that private respondent
proffered during trial: The lower court held that the prevailing replacement value of P6,438,048.00 of
the fishing boat and all its equipment would regularly increase at 30% every
(a) Exhibit A — certified xerox copy of the certificate of ownership of M/V year from the date the quotations were given.
Maria Efigenia XV;
On the other hand, the lower court noted that petitioner only presented Lorenzo
(b) Exhibit B — a document titled "Marine Protest" executed by Delfin Lazaro, senior estimator at PNOC Dockyard & Engineering Corporation, as sole
Villarosa, Jr. on September 22, 1977 stating that as a result of the collision, witness and it did not bother at all to offer any documentary evidence to support
the M/V Maria Efigenia XV sustained a hole at its left side that caused it to sink its position. Lazaro testified that the price quotations submitted by private
with its cargo of 1,050 bañeras valued at P170,000.00; respondent were "excessive" and that as an expert witness, he used the
quotations of his suppliers in making his estimates. However, he failed to
(c) Exhibit C — a quotation for the construction of a 95-footer trawler issued by present such quotations of prices from his suppliers, saying that he could not
Isidoro A. Magalong of I. A. Magalong Engineering and Construction on produce a breakdown of the costs of his estimates as it was "a sort of secret
January 26, 1987 to Del Rosario showing that construction of such trawler scheme." For this reason, the lower court concluded:
would cost P2,250,000.00;
Evidently, the quotation of prices submitted by the plaintiff relative to the
(d) Exhibit D — pro forma invoice No. PSPI-05/87-NAV issued by E.D. Daclan replacement value of the fishing boat and its equipments in the tune of
of Power Systems, Incorporated on January 20, 1987 to Del Rosario showing P6,438,048.00 which were lost due to the recklessness and imprudence of the
that two (2) units of CUMMINS Marine Engine model N855-M, 195 bhp. at herein defendants were not rebutted by the latter with sufficient evidence. The
1800 rpm. would cost P1,160,000.00; defendants through their sole witness Lorenzo Lazaro relied heavily on said
witness' bare claim that the amount afore-said is excessive or bloated, but they
(e) Exhibit E — quotation of prices issued by Scan Marine Inc. on January 20, did not bother at all to present any documentary evidence to substantiate such
claim. Evidence to be believed must not only proceed from the mouth of the
1987 to Del Rosario showing that a unit of Furuno Compact Daylight Radar,
credible witness, but it must be credible in itself. (Vda. de Bonifacio vs. B. L. T. or technical grounds, but admitting them unless plainly irrelevant, immaterial or
Bus Co., Inc. L-26810, August 31, 1970). incompetent, for the reason that their rejection places them beyond the
consideration of the court. If they are thereafter found relevant or competent, can
Aggrieved, petitioner filed a motion for the reconsideration of the lower court's easily be remedied by completely discarding or ignoring them. (Banaria vs.
decision contending that: (1) the lower court erred in holding it liable for Banaria, et al., C.A. No. 4142, May 31, 1950; cited in Francisco, Supra).
damages; that the lower court did not acquire jurisdiction over the case by [Emphasis supplied].
paying only P1,252.00 as docket fee; (2) assuming that plaintiff was entitled to
damages, the lower court erred in awarding an amount greater than that prayed Stressing that the alleged inadmissible documentary exhibits were never
for in the second amended complaint; and (3) the lower court erred when it satisfactorily rebutted by appellant's own sole witness in the person of Lorenzo
failed to resolve the issues it had raised in its memorandum. 16Petitioner likewise Lazaro, the appellate court found that petitioner ironically situated itself in an
filed a supplemental motion for reconsideration expounding on whether the "inconsistent posture by the fact that its own witness, admittedly an expert one,
lower court acquired jurisdiction over the subject matter of the case despite heavily relies on the very same pieces of evidence (price quotations) appellant
therein plaintiff's failure to pay the prescribed docket fee. 17 has so vigorously objected to as inadmissible evidence." Hence, it concluded:

On January 25, 1990, the lower court declined reconsideration for lack of . . . The amount of P6,438,048.00 was duly established at the trial on the basis of
merit. 18 Apparently not having received the order denying its motion for appellee's documentary exhibits (price quotations) which stood uncontroverted,
reconsideration, petitioner still filed a motion for leave to file a reply to private and which already included the amount by way of adjustment as prayed for in
respondent's opposition to said motion. 19 Hence, on February 12, 1990, the the amended complaint. There was therefore no need for appellee to amend the
lower court denied said motion for leave to file a reply on the ground that by the second amended complaint in so far as to the claim for damages is concerned to
issuance of the order of January 25, 1990, said motion had become moot and conform with the evidence presented at the trial. The amount of P6,438,048.00
academic. 20 awarded is clearly within the relief prayed for in appellee's second amended
complaint.
Unsatisfied with the lower court's decision, petitioner elevated the matter to the
Court of Appeals which, however, affirmed the same in toto on October 14, On the issue of lack of jurisdiction, the respondent court held that following the
1992. 21 On petitioner's assertion that the award of P6,438,048.00 was not ruling in Sun Insurance Ltd. v. Asuncion, 22 the additional docket fee that may
convincingly proved by competent and admissible evidence, the Court of later on be declared as still owing the court may be enforced as a lien on the
Appeals ruled that it was not necessary to qualify Del Rosario as an expert judgment.
witness because as the owner of the lost vessel, "it was well within his
knowledge and competency to identify and determine the equipment installed Hence, the instant recourse.
and the cargoes loaded" on the vessel. Considering the documentary evidence
presented as in the nature of market reports or quotations, trade journals, trade
In assailing the Court of Appeals' decision, petitioner posits the view that the
circulars and price lists, the Court of Appeals held, thus:
award of P6,438,048 as actual damages should have been in light of these
considerations, namely: (1) the trial court did not base such award on the actual
Consequently, until such time as the Supreme Court categorically rules on the value of the vessel and its equipment at the time of loss in 1977; (2) there was no
admissibility or inadmissibility of this class of evidence, the reception of these evidence on extraordinary inflation that would warrant an adjustment of the
documentary exhibits (price quotations) as evidence rests on the sound replacement cost of the lost vessel, equipment and cargo; (3) the value of the lost
discretion of the trial court. In fact, where the lower court is confronted with cargo and the prices quoted in respondent's documentary evidence only amount
evidence which appears to be of doubtful admissibility, the judge should declare to P4,336,215.00; (4) private respondent's failure to adduce evidence to support
in favor of admissibility rather than of non-admissibility (The Collector of its claim for unrealized profit and business opportunities; and (5) private
Palakadhari, 124 [1899], p. 13, cited in Francisco, Revised Rules of Court, respondent's failure to prove the extent and actual value of damages sustained as
Evidence, Volume VII, Part I, 1990 Edition, p. 18). Trial courts are enjoined to a result of the 1977 collision of the vessels. 23
observe the strict enforcement of the rules of evidence which crystallized
through constant use and practice and are very useful and effective aids in the
Under Article 2199 of the Civil Code, actual or compensatory damages are those
search for truth and for the effective administration of justice. But in connection
awarded in satisfaction of, or in recompense for, loss or injury sustained. They
with evidence which may appear to be of doubtful relevancy or incompetency or proceed from a sense of natural justice and are designed to repair the wrong that
admissibility, it is the safest policy to be liberal, not rejecting them on doubtful
has been done, to compensate for the injury inflicted and not to impose a early 1987 or approximately ten (10) years after the collision. Noticeably,
penalty. 24 In actions based on torts or quasi-delicts, actual damages include all petitioner did not object to the exhibits in terms of the time index for valuation
the natural and probable consequences of the act or omission complained of the lost goods and equipment. In objecting to the same pieces of evidence,
of. 25 There are two kinds of actual or compensatory damages: one is the loss of petitioner commented that these were not duly authenticated and that the witness
what a person already possesses (daño emergente), and the other is the failure to (Del Rosario) did not have personal knowledge on the contents of the writings
receive as a benefit that which would have pertained to him (lucro and neither was he an expert on the subjects thereof. 31 Clearly ignoring
cesante). 26 Thus: petitioner's objections to the exhibits, the lower court admitted these pieces of
evidence and gave them due weight to arrive at the award of P6,438,048.00 as
Where goods are destroyed by the wrongful act of the defendant the plaintiff is actual damages.
entitled to their value at the time of destruction, that is, normally, the sum of
money which he would have to pay in the market for identical or essentially The exhibits were presented ostensibly in the course of Del Rosario's testimony.
similar goods, plus in a proper case damages for the loss of use during the period Private respondent did not present any other witnesses especially those whose
before replacement. In other words, in the case of profit-earning chattels, what signatures appear in the price quotations that became the bases of the award. We
has to be assessed is the value of the chattel to its owner as a going concern at hold, however, that the price quotations are ordinary private writings which
the time and place of the loss, and this means, at least in the case of ships, that under the Revised Rules of Court should have been proffered along with the
regard must be had to existing and pending engagements, . . . testimony of the authors thereof. Del Rosario could not have testified on the
veracity of the contents of the writings even though he was the seasoned owner
. . . . If the market value of the ship reflects the fact that it is in any case virtually of a fishing fleet because he was not the one who issued the price quotations.
certain of profitable employment, then nothing can be added to that value in Section 36, Rule 130 of the Revised Rules of Court provides that a witness can
respect of charters actually lost, for to do so would be pro tanto to compensate testify only to those facts that he knows of his personal knowledge.
the plaintiff twice over. On the other hand, if the ship is valued without
reference to its actual future engagements and only in the light of its profit- For this reason, Del Rosario's claim that private respondent incurred losses in the
earning potentiality, then it may be necessary to add to the value thus assessed total amount of P6,438,048.00 should be admitted with extreme caution
the anticipated profit on a charter or other engagement which it was unable to considering that, because it was a bare assertion, it should be supported by
fulfill. What the court has to ascertain in each case is the "capitalised value of independent evidence. Moreover, because he was the owner of private
the vessel as a profit-earning machine not in the abstract but in view of the respondent corporation 32 whatever testimony he would give with regard to the
actual circumstances," without, of course, taking into account considerations value of the lost vessel, its equipment and cargoes should be viewed in the light
which were too remote at the time of the loss. 27 [Emphasis supplied]. of his self-interest therein. We agree with the Court of Appeals that his
testimony as to the equipment installed and the cargoes loaded on the vessel
As stated at the outset, to enable an injured party to recover actual or should be given credence 33 considering his familiarity thereto. However, we do
compensatory damages, he is required to prove the actual amount of loss with not subscribe to the conclusion that his valuation of such equipment, cargo and
reasonable degree of certainty premised upon competent proof and on the best the vessel itself should be accepted as gospel truth. 34 We must, therefore,
evidence available. 28 The burden of proof is on the party who would be defeated examine the documentary evidence presented to support Del Rosario's claim as
if no evidence would be presented on either side. He must establish his case by a regards the amount of losses.
preponderance of evidence which means that the evidence, as a whole, adduced
by one side is superior to that of the other. 29 In other words, damages cannot be The price quotations presented as exhibits partake of the nature of hearsay
presumed and courts, in making an award must point out specific facts that evidence considering that the persons who issued them were not presented as
could afford a basis for measuring whatever compensatory or actual damages are witnesses. 35 Any evidence, whether oral or documentary, is hearsay if its
borne. 30 probative value is not based on the personal knowledge of the witness but on the
knowledge of another person who is not on the witness stand. Hearsay evidence,
In this case, actual damages were proven through the sole testimony of private whether objected to or not, has no probative value unless the proponent can
respondent's general manager and certain pieces of documentary evidence. show that the evidence falls within the exceptions to the hearsay evidence
Except for Exhibit B where the value of the 1,050 bañeras of fish were pegged rule. 36 On this point, we believe that the exhibits do not fall under any of the
at their September 1977 value when the collision happened, the pieces of exceptions provided under Sections 37 to 47 of Rule 130. 37
documentary evidence proffered by private respondent with respect to items and
equipment lost show similar items and equipment with corresponding prices in
It is true that one of the exceptions to the hearsay rule pertains to "commercial Gentlemen:
lists and the like" under Section 45, Rule 130 of the Revised Rules on Evidence. In accordance to your request, we are pleated to quote our Cummins Marine
In this respect, the Court of Appeals considered private respondent's exhibits as Engine, to wit.
"commercial lists." It added, however, that these exhibits should be admitted in Two (2) units CUMMINS Marine Engine model N855-M, 195 bhp. at 1800
evidence "until such time as the Supreme Court categorically rules on the rpm., 6-cylinder in-line, 4-stroke cycle, natural aspirated, 5 1/2 in. x 6 in. bore
admissibility or inadmissibility of this class of evidence" because "the reception and stroke, 855 cu. In. displacement, keel-cooled, electric starting coupled with
of these documentary exhibits (price quotations) as evidence rests on the sound Twin-Disc Marine gearbox model MG-509, 4.5:1 reduction ratio, includes oil
discretion of the trial court." 38 Reference to Section 45, Rule 130, however, cooler, companion flange, manual and standard accessories as per attached sheet.
would show that the conclusion of the Court of Appeals on the matter was Price FOB Manila P580,000.00/unit
arbitrarily arrived at. This rule states: Total FOB Manila P1,160,000.00
TERMS : CASH
Commercial lists and the like. — Evidence of statements of matters of interest to DELIVERY : 60-90 days from date of order.
persons engaged in an occupation contained in a list, register, periodical, or VALIDITY : Subject to our final confirmation.
other published compilation is admissible as tending to prove the truth of any WARRANTY : One (1) full year against factory defect.
relevant matter so stated if that compilation is published for use by persons
engaged in that occupation and is generally used and relied upon by them there. ‘To be sure, letters and telegrams are admissible in evidence but these are,
however, subject to the general principles of evidence and to various rules
Under Section 45 of the aforesaid Rule, a document is a commercial list if: (1) it relating to documentary evidence. 42 Hence, in one case, it was held that a letter
is a statement of matters of interest to persons engaged in an occupation; (2) from an automobile dealer offering an allowance for an automobile upon
such statement is contained in a list, register, periodical or other published purchase of a new automobile after repairs had been completed, was not a "price
compilation; (3) said compilation is published for the use of persons engaged in current" or "commercial list" within the statute which made such items
that occupation, and (4) it is generally used and relied upon by persons in the presumptive evidence of the value of the article specified therein. The letter was
same occupation. not admissible in evidence as a "commercial list" even though the clerk of the
dealer testified that he had written the letter in due course of business upon
Based on the above requisites, it is our considered view that Exhibits B, C, D, E, instructions of the dealer. 43
F and H 39 are not "commercial lists" for these do not belong to the category of
"other published compilations" under Section 45 aforequoted. Under the But even on the theory that the Court of Appeals correctly ruled on the
principle of ejusdem generis, "(w)here general words follow an enumeration of admissibility of those letters or communications when it held that unless "plainly
persons or things, by words of a particular and specific meaning, such general irrelevant, immaterial or incompetent," evidence should better be admitted rather
words are not to be construed in their widest extent, but are to be held as than rejected on "doubtful or technical grounds," 44 the same pieces of evidence,
applying only to persons or things of the same kind or class as those specifically however, should not have been given probative weight. This is a distinction we
mentioned." 40 The exhibits mentioned are mere price quotations issued wish to point out. Admissibility of evidence refers to the question of whether or
personally to Del Rosario who requested for them from dealers of equipment not the circumstance (or evidence) is to considered at all. 45 On the other hand,
similar to the ones lost at the collision of the two vessels. These are not the probative value of evidence refers to the question of whether or not it proves
published in any list, register, periodical or other compilation on the relevant an issue. 46 Thus, a letter may be offered in evidence and admitted as such but its
subject matter. Neither are these "market reports or quotations" within the evidentiary weight depends upon the observance of the rules on evidence.
purview of "commercial lists" as these are not "standard handbooks or Accordingly, the author of the letter should be presented as witness to provide
periodicals, containing data of everyday professional need and relied upon in the the other party to the litigation the opportunity to question him on the contents
work of the occupation." 41 These are simply letters responding to the queries of of the letter. Being mere hearsay evidence, failure to present the author of the
Del Rosario. Thus, take for example Exhibit D which reads: letter renders its contents suspect. As earlier stated, hearsay evidence, whether
objected to or not, has no probative value. Thus:
January 20, 1987
PROFORMA INVOICE NO. PSPI-05/87-NAV The courts differ as to the weight to be given to hearsay evidence admitted
MARIA EFIGINIA FISHING CORPORATION without objection. Some hold that when hearsay has been admitted without
Navotas, Metro Manila objection, the same may be considered as any other properly admitted testimony.
Attention: MR. EDDIE DEL ROSARIO
Others maintain that it is entitled to no more consideration than if it had been concept and purpose of such damages. 52 The amount of nominal damages to be
excluded. awarded may also depend on certain special reasons extant in the case. 53

The rule prevailing in this jurisdiction is the latter one. Our Supreme Court held Applying now such principles to the instant case, we have on record the fact that
that although the question of admissibility of evidence can not be raised for the petitioner's vesselPetroparcel was at fault as well as private respondent's
first time on appeal, yet if the evidence is hearsay it has no probative value and complaint claiming the amount of P692,680.00 representing the fishing nets,
should be disregarded whether objected to or not. "If no objection is made" — boat equipment and cargoes that sunk with the M/V Maria Efigenia XV. In its
quoting Jones on Evidence — "it (hearsay) becomes evidence by reason of the amended complaint, private respondent alleged that the vessel had an actual
want of such objection even though its admission does not confer upon it any value of P800,000.00 but it had been paid insurance in the amount of
new attribute in point of weight. Its nature and quality remain the same, so far as P200,000.00 and, therefore, it claimed only the amount of P600,000.00.
its intrinsic weakness and incompetency to satisfy the mind are concerned, and Ordinarily, the receipt of insurance payments should diminish the total value of
as opposed to direct primary evidence, the latter always prevails. the vessel quoted by private respondent in his complaint considering that such
payment is causally related to the loss for which it claimed compensation. This
The failure of the defense counsel to object to the presentation of incompetent Court believes that such allegations in the original and amended complaints can
evidence, like hearsay evidence or evidence that violates the rules of res inter be the basis for determination of a fair amount of nominal damages inasmuch as
alios acta, or his failure to ask for the striking out of the same does not give such a complaint alleges the ultimate facts constituting the plaintiffs cause of
evidence any probative value. But admissibility of evidence should not be action. 54 Private respondent should be bound by its allegations on the amount of
equated with weight of evidence. Hearsay evidence whether objected to or not its claims.
has no probative value. 47
With respect to petitioner's contention that the lower court did not acquire
Accordingly, as stated at the outset, damages may not be awarded on the basis of jurisdiction over the amended complaint increasing the amount of damages
hearsay evidence. 48 claimed to P600,000.00, we agree with the Court of Appeals that the lower court
acquired jurisdiction over the case when private respondent paid the docket fee
Nonetheless, the non-admissibility of said exhibits does not mean that it totally corresponding to its claim in its original complaint. Its failure to pay the docket
fee corresponding to its increased claim for damages under the amended
deprives private respondent of any redress for the loss of its vessel. This is
complaint should not be considered as having curtailed the lower court's
because in Lufthansa German Airlines v. Court of Appeals, 49 the Court said:
jurisdiction. Pursuant to the ruling in Sun Insurance Office, Ltd. (SIOL) v.
Asuncion, 55 the unpaid docket fee should be considered as a lien on the
In the absence of competent proof on the actual damage suffered, private judgment even though private respondent specified the amount of P600,000.00
respondent is "entitled to nominal damages which, as the law says, is as its claim for damages in its amended complaint.
adjudicated in order that a right of the plaintiff, which has been violated or
invaded by defendant, may be vindicated and recognized, and not for the
Moreover, we note that petitioner did not question at all the jurisdiction of the
purpose of indemnifying the plaintiff for any loss suffered." [Emphasis supplied].
lower court on the ground of insufficient docket fees in its answers to both the
amended complaint and the second amended complaint. It did so only in its
Nominal damages are awarded in every obligation arising from law, contracts, motion for reconsideration of the decision of the lower court after it had received
quasi-contracts, acts or omissions punished by law, and quasi-delicts, or in every an adverse decision. As this Court held in Pantranco North Express, Inc. v.
case where property right has been invaded. 50Under Article 2223 of the Civil Court of Appeals, 56 participation in all stages of the case before the trial court,
Code, "(t)he adjudication of nominal damages shall preclude further contest that included invoking its authority in asking for affirmative relief, effectively
upon the right involved and all accessory questions, as between the parties to the barred petitioner by estoppel from challenging the court's jurisdiction. Notably,
suit, or their respective heirs and assigns." from the time it filed its answer to the second amended complaint on April 16,
1985, 57 petitioner did not question the lower court's jurisdiction. It was only on
Actually, nominal damages are damages in name only and not in fact. Where December 29, 1989 58 when it filed its motion for reconsideration of the lower
these are allowed, they are not treated as an equivalent of a wrong inflicted but court's decision that petitioner raised the question of the lower court's lack of
simply in recognition of the existence of a technical injury. 51 However, the jurisdiction. Petitioner thus foreclosed its right to raise the issue of jurisdiction
amount to be awarded as nominal damages shall be equal or at least by its own inaction.
commensurate to the injury sustained by private respondent considering the
WHEREFORE, the challenged decision of the Court of Appeals dated October The facts, as culled from the records, are as follows:
14, 1992 in CA-G.R. CV No. 26680 affirming that of the Regional Trial Court
of Caloocan City, Branch 121, is hereby MODIFIED insofar as it awarded Petitioner and private respondent executed on May 5, 1978, an order agreement
actual damages to private respondent Maria Efigenia Fishing Corporation in the whereby private respondent bound itself to deliver to petitioner 3,450 reams of
amount of P6,438,048.00 for lack of evidentiary bases therefor. Considering the printing paper, coated, 2 sides basis, 80 lbs., 38" x 23", short grain, worth
fact, however, that: (1) technically petitioner sustained injury but which, P1,040,060.00 under the following schedule: May and June 1978 — 450 reams
unfortunately, was not adequately and properly proved, and (2) this case has at P290.00/ream; August and September 1978 — 700 reams at P290/ream;
dragged on for almost two decades, we believe that an award of Two Million January 1979 — 575 reams at P307.20/ream; March 1979 — 575 reams at
(P2,000,000.00) 59 in favor of private respondent as and for nominal damages is P307.20/ream; July 1979 — 575 reams at 307.20/ream; and October 1979 —
in order. 575 reams at P307.20/ream. In accordance with the standard operating practice
of the parties, the materials were to be paid within a minimum of thirty days and
No pronouncement as to costs. maximum of ninety days from delivery.

SO ORDERED. Later, on June 7, 1978, petitioner entered into a contract with Philippine
Appliance Corporation (Philacor) to print three volumes of "Philacor Cultural
Books" for delivery on the following dates: Book VI, on or before November
G.R. No. 115117, June 8, 2000 1978; Book VII, on or before November 1979 and; Book VIII, on or before
INTEGRATED PACKAGING CORP., petitioner, November 1980, with a minimum of 300,000 copies at a price of P10.00 per
vs. COURT OF APPEALS and FIL-ANCHOR PAPER CO., INC., respondents. copy or a total cost of P3,000,000.00.

This is a petition to review the decision of the Court of Appeals rendered on As of July 30, 1979, private respondent had delivered to petitioner 1,097 reams
April 20, 1994 reversing the judgment of the Regional Trial Court of Caloocan of printing paper out of the total 3,450 reams stated in the agreement. Petitioner
City in an action for recovery of sum of money filed by private respondent alleged it wrote private respondent to immediately deliver the balance because
against petitioner. In said decision, the appellate court decreed: further delay would greatly prejudice petitioner. From June 5, 1980 and until
July 23, 1981, private respondent delivered again to petitioner various quantities
WHEREFORE, in view of all the foregoing, the appealed judgment is hereby of printing paper amounting to P766,101.70. However, petitioner encountered
REVERSED and SET ASIDE. Appellee [petitioner herein] is hereby ordered to difficulties paying private respondent said amount. Accordingly, private
pay appellant [private respondent herein] the sum of P763,101.70, with legal respondent made a formal demand upon petitioner to settle the outstanding
interest thereon, from the date of the filing of the Complaint, until fully paid. SO account. On July 23 and 31, 1981 and August 27, 1981, petitioner made partial
ORDERED.1 payments totalling P97,200.00 which was applied to its back accounts covered
by delivery invoices dated September 29-30, 1980 and October 1-2, 1980.3
The RTC judgment reversed by the Court of Appeals had disposed of the
complain as follows: Meanwhile, petitioner entered into an additional printing contract with Philacor.
Unfortunately, petitioner failed to fully comply with its contract with Philacor
WHEREFORE, judgment is hereby rendered: for the printing of books VIII, IX, X and XI. Thus, Philacor demanded
compensation from petitioner for the delay and damage it suffered on account of
petitioner's failure.
Ordering plaintiff [herein private respondent] to pay defendant [herein petitioner]
the sum of P27,222.60 as compensatory and actual damages after deducting
P763,101.70 (value of materials received by defendant) from P790,324.30 On August 14, 1981, private respondent filed with the Regional Trial Court of
representing compensatory damages as defendant's unrealized profits; Caloocan City a collection suit against petitioner for the sum of P766,101.70,
representing the unpaid purchase price of printing paper bought by petitioner on
credit.
Ordering plaintiff to pay defendant the sum of P100,000.00 as moral damages;
In its answer, petitioner denied the material allegations of the complaint. By way
Ordering plaintiff to pay the sum of P30,000.00 for attorney's fees; and to pay of counterclaim, petitioner alleged that private respondent was able to deliver
the costs of suit. SO ORDERED.2
only 1,097 reams of printing paper which was short of 2,875 reams, in total [II]
disregard of their agreement; that private respondent failed to deliver the balance
of the printing paper despite demand therefor, hence, petitioner suffered actual THE COURT OF APPEALS ERRED IN CONCLUDING THAT
damages and failed to realize expected profits; and that petitioner's complaint RESPONDENT IS NOT LIABLE FOR PETITIONER'S BREACH OF
was prematurely filed. CONTRACT WITH PHILACOR.

After filing its reply and answer to the counterclaim, private respondent moved [III]
for admission of its supplemental complaint, which was granted. In said
supplemental complaint, private respondent alleged that subsequent to the
THE COURT OF APPEALS ERRED IN CONCLUDING THAT
enumerated purchase invoices in the original complaint, petitioner made
PETITIONER IS NOT ENTITLED TO DAMAGES AGAINST
additional purchases of printing paper on credit amounting to P94,200.00.
PRIVATE RESPONDENT. 5
Private respondent also averred that petitioner failed and refused to pay its
outstanding obligation although it made partial payments in the amount of
P97,200.00 which was applied to back accounts, thus, reducing petitioner's In our view, the crucial issues for resolution in this case are as follows:
indebtedness to P763,101.70.
(1) Whether or not private respondent violated the order agreement, and;
On July 5, 1990, the trial court rendered judgment declaring that petitioner
should pay private respondent the sum of P763,101.70 representing the value of (2) Whether or not private respondent is liable for petitioner's breach of
printing paper delivered by private respondent from June 5, 1980 to July 23, contract with Philacor.
1981. However, the lower court also found petitioner's counterclaim meritorious.
It ruled that were it not for the failure or delay of private respondent to deliver Petitioner's contention lacks factual and legal basis, hence, bereft of merit.
printing paper, petitioner could have sold books to Philacor and realized profit of
P790,324.30 from the sale. It further ruled that petitioner suffered a dislocation Petitioner contends, firstly, that private respondent violated the order agreement
of business on account of loss of contracts and goodwill as a result of private when the latter failed to deliver the balance of the printing paper on the dates
respondent's violation of its obligation, for which the award of moral damages agreed upon.
was justified.
The transaction between the parties is a contract of sale whereby private
On appeal, the respondent Court of Appeals reversed and set aside the judgment respondent (seller) obligates itself to deliver printing paper to petitioner (buyer)
of the trial court. The appellate court ordered petitioner to pay private which, in turn, binds itself to pay therefor a sum of money or its equivalent
respondent the sum of P763,101.70 representing the amount of unpaid printing (price).6 Both parties concede that the order agreement gives rise to a reciprocal
paper delivered by private respondent to petitioner, with legal interest thereon obligations7 such that the obligation of one is dependent upon the obligation of
from the date of the filing of the complaint until fully paid.4 However, the the other. Reciprocal obligations are to be performed simultaneously, so that the
appellate court deleted the award of P790,324.30 as compensatory damages as performance of one is conditioned upon the simultaneous fulfillment of the
well as the award of moral damages and attorney's fees, for lack of factual and other.8 Thus, private respondent undertakes to deliver printing paper of various
legal basis. quantities subject to petitioner's corresponding obligation to pay, on a maximum
90-day credit, for these materials. Note that in the contract, petitioner is not even
Expectedly, petitioner filed this instant petition contending that the appellate required to make any deposit, down payment or advance payment, hence, the
court's judgment is based on erroneous conclusions of facts and law. In this undertaking of private respondent to deliver the materials is conditional upon
recourse, petitioner assigns the following errors: payment by petitioner within the prescribed period. Clearly, petitioner did not
fulfill its side of the contract as its last payment in August 1981 could cover only
[I] materials covered by delivery invoices dated September and October 1980.

THE COURT OF APPEALS ERRED IN CONCLUDING THAT There is no dispute that the agreement provides for the delivery of printing paper
PRIVATE RESPONDENT DID NOT VIOLATE THE ORDER on different dates and a separate price has been agreed upon for each delivery. It
AGREEMENT. is also admitted that it is the standard practice of the parties that the materials be
paid within a minimum period of thirty (30) days and a maximum of ninety (90) 1981. This demand relates to contracts with Philacor dated April 12, 1983 and
days from each delivery.9 Accordingly, the private respondent's suspension of its May 13, 1983, which were entered into by petitioner after private respondent
deliveries to petitioner whenever the latter failed to pay on time, as in this case, filed the instant case.lawphi1
is legally justified under the second paragraph of Article 1583 of the Civil Code
which provides that: To recapitulate, private respondent did not violate the order agreement it had
with petitioner. Likewise, private respondent could not be held liable for
When there is a contract of sale of goods to be delivered by stated installments, petitioner's breach of contract with Philacor. It follows that there is no basis to
which are to be separately paid for, and the seller makes defective deliveries in hold private respondent liable for damages. Accordingly, the appellate court did
respect of one or more installments, or the buyer neglects or refuses without just not err in deleting the damages awarded by the trial court to petitioner.
cause to take delivery of or pay for one or more installments, it depends in each
case on the terms of the contract and the circumstances of the case, whether the The rule on compensatory damages is well established. True, indemnification
breach of contract is so material as to justify the injured party in refusing to for damages comprehends not only the loss suffered, that is to say actual
proceed further and suing for damages for breach of the entire contract, or damages (damnum emergens), but also profits which the obligee failed to obtain,
whether the breach is severable, giving rise to a claim for compensation but not referred to as compensatory damages (lucrum cessans). However, to justify a
to a right to treat the whole contract as broken. (Emphasis supplied) grant of actual or compensatory damages, it is necessary to prove with a
reasonable degree of certainty, premised upon competent proof and on the best
In this case, as found a quo petitioner's evidence failed to establish that it had evidence obtainable by the injured party, the actual amount of loss. 13 In the case
paid for the printing paper covered by the delivery invoices on time. at bar, the trial court erroneously concluded that petitioner could have sold
Consequently, private respondent has the right to cease making further delivery, books to Philacor at the quoted selling price of P1,850,750.55 and by deducting
hence the private respondent did not violate the order agreement. On the the production cost of P1,060,426.20, petitioner could have earned profit of
contrary, it was petitioner which breached the agreement as it failed to pay on P790,324.30. Admittedly, the evidence relied upon by the trial court in arriving
time the materials delivered by private respondent. Respondent appellate court at the amount are mere estimates prepared by petitioner. 14 Said evidence is
correctly ruled that private respondent did not violate the order agreement. highly speculative and manifestly hypothetical. It could not provide sufficient
legal and factual basis for the award of P790,324.30 as compensatory damages
On the second assigned error, petitioner contends that private respondent should representing petitioner's self-serving claim of unrealized profit.
be held liable for petitioner's breach of contract with Philacor. This claim is
manifestly devoid of merit. Further, the deletion of the award of moral damages is proper, since private
respondent could not be held liable for breach of contract. Moral damages may
As correctly held by the appellate court, private respondent cannot be held liable be awarded when in a breach of contract the defendant acted in bad faith, or was
under the contracts entered into by petitioner with Philacor. Private respondent guilty of gross negligence amounting to bad faith, or in wanton disregard of his
is not a party to said agreements. It is also not a contract pour autrui. Aforesaid contractual obligation. 15Finally, since the award of moral damages is eliminated,
contracts could not affect third persons like private respondent because of the so must the award for attorney's fees be also deleted. 16
basic civil law principle of relativity of contracts which provides that contracts
can only bind the parties who entered into it, and it cannot favor or prejudice a WHEREFORE, the instant petition is DENIED. The decision of the Court of
third person, 10 even if he is aware of such contract and has acted with Appeals is AFFIRMED. Costs against petitioner.
knowledge thereof. 11
SO ORDERED.
Indeed, the order agreement entered into by petitioner and private respondent
has not been shown as having a direct bearing on the contracts of petitioner with
Philacor. As pointed out by private respondent and not refuted by petitioner, the
G.R. No. 118342 January 5, 1998
paper specified in the order agreement between petitioner and private respondent DEVELOPMENT BANK OF THE PHILIPPINES, petitioner,
are markedly different from the paper involved in the contracts of petitioner with vs. COURT OF APPEALS and LYDIA CUBA, respondents.
Philacor. 12 Furthermore, the demand made by Philacor upon petitioner for the
latter to comply with its printing contract is dated February 15, 1984, which is G.R. No. 118367 January 5, 1998
clearly made long after private respondent had filed its complaint on August 14,
LYDIA P. CUBA, petitioner, 7. In the negotiation for repurchase, plaintiff Lydia Cuba addressed two letters to
vs. COURT OF APPEALS, DEVELOPMENT BANK OF THE PHILIPPINES and the Manager DBP, Dagupan City dated November 6, 1979 and December 20,
1979. DBP thereafter accepted the offer to repurchase in a letter addressed to
AGRIPINA P. CAPERAL, respondents.
plaintiff dated February 1, 1982;
These two consolidated cases stemmed from a complaint1 filed against the
8. After the Deed of Conditional Sale was executed in favor of plaintiff Lydia
Development Bank of the Philippines (hereafter DBP) and Agripina Caperal
Cuba, a new Fishpond Lease Agreement No. 2083-A dated March 24, 1980 was
filed by Lydia Cuba (hereafter CUBA) on 21 May 1985 with the Regional Trial
issued by the Ministry of Agriculture and Food in favor of plaintiff Lydia Cuba
Court of Pangasinan, Branch 54. The said complaint sought (1) the declaration
only, excluding her husband;
of nullity of DBP's appropriation of CUBA's rights, title, and interests over a 44-
hectares fishpond located in Bolinao, Pangasinan, for being violative of Article
2088 of the Civil Code; (2) the annulment of the Deed of Conditional Sale 9. Plaintiff Lydia Cuba failed to pay the amortizations stipulated in the Deed of
executed in her favor by DBP; (3) the annulment of DBP's sale of the subject Conditional Sale;
fishpond to Caperal; (4) the restoration of her rights, title, and interests over the
fishpond; and (5) the recovery of damages, attorney's fees, and expenses of 10. After plaintiff Lydia Cuba failed to pay the amortization as stated in Deed of
litigation. Conditional Sale, she entered with the DBP a temporary arrangement whereby
in consideration for the deferment of the Notarial Rescission of Deed of
After the joinder of issues following the filing by the parties of their respective Conditional Sale, plaintiff Lydia Cuba promised to make certain payments as
pleadings, the trial court conducted a pre-trial where CUBA and DBP agreed on stated in temporary Arrangement dated February 23, 1982;
the following facts, which were embodied in the pre-trial order:2
11. Defendant DBP thereafter sent a Notice of Rescission thru Notarial Act
1. Plaintiff Lydia P. Cuba is a grantee of a Fishpond Lease Agreement No. 2083 dated March 13, 1984, and which was received by plaintiff Lydia Cuba;
(new) dated May 13, 1974 from the Government;
12. After the Notice of Rescission, defendant DBP took possession of the
2. Plaintiff Lydia P. Cuba obtained loans from the Development Bank of the Leasehold Rights of the fishpond in question;
Philippines in the amounts of P109,000.00; P109,000.00; and P98,700.00 under
the terms stated in the Promissory Notes dated September 6, 1974; August 11, 13. That after defendant DBP took possession of the Leasehold Rights over the
1975; and April 4, 1977; fishpond in question, DBP advertised in the SUNDAY PUNCH the public
bidding dated June 24, 1984, to dispose of the property;
3. As security for said loans, plaintiff Lydia P. Cuba executed two Deeds of
Assignment of her Leasehold Rights; 14. That the DBP thereafter executed a Deed of Conditional Sale in favor of
defendant Agripina Caperal on August 16, 1984;
4. Plaintiff failed to pay her loan on the scheduled dates thereof in accordance
with the terms of the Promissory Notes; 15. Thereafter, defendant Caperal was awarded Fishpond Lease Agreement No.
2083-A on December 28, 1984 by the Ministry of Agriculture and Food.
5. Without foreclosure proceedings, whether judicial or extra-judicial, defendant
DBP appropriated the Leasehold Rights of plaintiff Lydia Cuba over the Defendant Caperal admitted only the facts stated in paragraphs 14 and 15 of the
fishpond in question; pre-trial order.3

6. After defendant DBP has appropriated the Leasehold Rights of plaintiff Lydia Trial was thereafter had on other matters.
Cuba over the fishpond in question, defendant DBP, in turn, executed a Deed of
Conditional Sale of the Leasehold Rights in favor of plaintiff Lydia Cuba over The principal issue presented was whether the act of DBP in appropriating to
the same fishpond in question; itself CUBA's leasehold rights over the fishpond in question without foreclosure
proceedings was contrary to Article 2088 of the Civil Code and, therefore,
invalid. CUBA insisted on an affirmative resolution. DBP stressed that it merely
exercised its contractual right under the Assignments of Leasehold Rights, The trial court further found that DBP was guilty of gross bad faith in falsely
which was not a contract of mortgage. Defendant Caperal sided with DBP. representing to the Bureau of Fisheries that it had foreclosed its mortgage on
CUBA's leasehold rights. Such representation induced the said Bureau to
The trial court resolved the issue in favor of CUBA by declaring that DBP's terminate CUBA's leasehold rights and to approve the Deed of Conditional Sale
taking possession and ownership of the property without foreclosure was plainly in favor of CUBA. And considering that by reason of her unlawful ejectment by
violative of Article 2088 of the Civil Code which provides as follows: DBP, CUBA "suffered moral shock, degradation, social humiliation, and serious
anxieties for which she became sick and had to be hospitalized" the trial court
Art. 2088. The creditor cannot appropriate the things given by found her entitled to moral and exemplary damages. The trial court also held
way of pledge or mortgage, or dispose of them. Any that CUBA was entitled to P100,000 attorney's fees in view of the considerable
expenses she incurred for lawyers' fees and in view of the finding that she was
stipulation to the contrary is null and void.
entitled to exemplary damages.
It disagreed with DBP's stand that the Assignments of Leasehold Rights were
not contracts of mortgage because (1) they were given as security for loans, (2) In its decision of 31 January 1990,4 the trial court disposed as follows:
although the "fishpond land" in question is still a public land, CUBA's leasehold
rights and interest thereon are alienable rights which can be the proper subject of WHEREFORE, judgment is hereby rendered in favor of plaintiff:
a mortgage; and (3) the intention of the contracting parties to treat the
Assignment of Leasehold Rights as a mortgage was obvious and unmistakable; 1. DECLARING null and void and without any legal effect the act of defendant
hence, upon CUBA's default, DBP's only right was to foreclose the Assignment Development Bank of the Philippines in appropriating for its own interest,
in accordance with law. without any judicial or extra-judicial foreclosure, plaintiff's leasehold rights and
interest over the fishpond land in question under her Fishpond Lease Agreement
The trial court also declared invalid condition no. 12 of the Assignment of No. 2083 (new);
Leasehold Rights for being a clear case of pactum commissorium expressly
prohibited and declared null and void by Article 2088 of the Civil Code. It then 2. DECLARING the Deed of Conditional Sale dated February 21, 1980 by and
concluded that since DBP never acquired lawful ownership of CUBA's between the defendant Development Bank of the Philippines and plaintiff (Exh.
leasehold rights, all acts of ownership and possession by the said bank were void. E and Exh. 1) and the acts of notarial rescission of the Development Bank of the
Accordingly, the Deed of Conditional Sale in favor of CUBA, the notarial Philippines relative to said sale (Exhs. 16 and 26) as void and ineffective;
rescission of such sale, and the Deed of Conditional Sale in favor of defendant
Caperal, as well as the Assignment of Leasehold Rights executed by Caperal in 3. DECLARING the Deed of Conditional Sale dated August 16, 1984 by and
favor of DBP, were also void and ineffective. between the Development Bank of the Philippines and defendant Agripina
Caperal (Exh. F and Exh. 21), the Fishpond Lease Agreement No. 2083-A dated
As to damages, the trial court found "ample evidence on record" that in 1984 the December 28, 1984 of defendant Agripina Caperal (Exh. 23) and the
representatives of DBP ejected CUBA and her caretakers not only from the Assignment of Leasehold Rights dated February 12, 1985 executed by defendant
fishpond area but also from the adjoining big house; and that when CUBA's son Agripina Caperal in favor of the defendant Development Bank of the Philippines
and caretaker went there on 15 September 1985, they found the said house (Exh. 24) as void ab initio;
unoccupied and destroyed and CUBA's personal belongings, machineries,
equipment, tools, and other articles used in fishpond operation which were kept 4. ORDERING defendant Development Bank of the Philippines and defendant
in the house were missing. The missing items were valued at about P550,000. It Agripina Caperal, jointly and severally, to restore to plaintiff the latter's
further found that when CUBA and her men were ejected by DBP for the first leasehold rights and interests and right of possession over the fishpond land in
time in 1979, CUBA had stocked the fishpond with 250,000 pieces of bangus question, without prejudice to the right of defendant Development Bank of the
fish (milkfish), all of which died because the DBP representatives prevented Philippines to foreclose the securities given by plaintiff;
CUBA's men from feeding the fish. At the conservative price of P3.00 per fish,
the gross value would have been P690,000, and after deducting 25% of said
5. ORDERING defendant Development Bank of the Philippines to pay to
value as reasonable allowance for the cost of feeds, CUBA suffered a loss of
plaintiff the following amounts:
P517,500. It then set the aggregate of the actual damages sustained by CUBA at
P1,067,500.
a) The sum of ONE MILLION SIXTY-SEVEN THOUSAND FIVE of conditional sale between DBP and Caperal, the Fishpond Lease Agreement in
HUNDRED PESOS (P1,067,500.00), as and for actual damages; favor of Caperal, and the assignment of leasehold rights executed by Caperal in
favor of DBP. It then ordered DBP to turn over possession of the property to
b) The sum of ONE HUNDRED THOUSAND (P100,000.00) PESOS as moral Caperal as lawful holder of the leasehold rights and to pay CUBA the following
damages; amounts: (a) P1,067,500 as actual damages; P50,000 as moral damages; and
P50,000 as attorney's fees.
c) The sum of FIFTY THOUSAND (P50,000.00) PESOS, as and for exemplary
damages; Since their motions for reconsideration were denied,6 DBP and CUBA filed
separate petitions for review.
d) And the sum of ONE HUNDRED THOUSAND (P100,000.00) PESOS, as
and for attorney's fees; In its petition (G.R. No. 118342), DBP assails the award of actual and moral
damages and attorney's fees in favor of CUBA.
6. And ORDERING defendant Development Bank of the Philippines to
reimburse and pay to defendant Agripina Caperal the sum of ONE MILLION Upon the other hand, in her petition (G.R. No. 118367), CUBA contends that the
FIVE HUNDRED THIRTY-TWO THOUSAND SIX HUNDRED TEN PESOS Court of Appeals erred (1) in not holding that the questioned deed of assignment
AND SEVENTY-FIVE CENTAVOS (P1,532,610.75) representing the amounts was a pactum commissorium contrary to Article 2088 of the Civil Code; (b) in
paid by defendant Agripina Caperal to defendant Development Bank of the holding that the deed of assignment effected a novation of the promissory notes;
Philippines under their Deed of Conditional Sale. (c) in holding that CUBA was estopped from questioning the validity of the deed
of assignment when she agreed to repurchase her leasehold rights under a deed
of conditional sale; and (d) in reducing the amounts of moral damages and
CUBA and DBP interposed separate appeals from the decision to the Court of
attorney's fees, in deleting the award of exemplary damages, and in not
Appeals. The former sought an increase in the amount of damages, while the
increasing the amount of damages.
latter questioned the findings of fact and law of the lower court.

We agree with CUBA that the assignment of leasehold rights was a mortgage
In its decision5 of 25 May 1994, the Court of Appeals ruled that (1) the trial
contract.
court erred in declaring that the deed of assignment was null and void and that
defendant Caperal could not validly acquire the leasehold rights from DBP; (2)
contrary to the claim of DBP, the assignment was not a cession under Article It is undisputed that CUBA obtained from DBP three separate loans totalling
1255 of the Civil Code because DBP appeared to be the sole creditor to CUBA P335,000, each of which was covered by a promissory note. In all of these notes,
— cession presupposes plurality of debts and creditors; (3) the deeds of there was a provision that: "In the event of foreclosure of the mortgage securing
assignment represented the voluntary act of CUBA in assigning her property this notes, I/We further bind myself/ourselves, jointly and severally, to pay the
rights in payment of her debts, which amounted to a novation of the promissory deficiency, if any."7
notes executed by CUBA in favor of DBP; (4) CUBA was estopped from
questioning the assignment of the leasehold rights, since she agreed to Simultaneous with the execution of the notes was the execution of "Assignments
repurchase the said rights under a deed of conditional sale; and (5) condition no. of Leasehold Rights"8where CUBA assigned her leasehold rights and interest on
12 of the deed of assignment was an express authority from CUBA for DBP to a 44-hectare fishpond, together with the improvements thereon. As pointed out
sell whatever right she had over the fishpond. It also ruled that CUBA was not by CUBA, the deeds of assignment constantly referred to the assignor (CUBA)
entitled to loss of profits for lack of evidence, but agreed with the trial court as as "borrower"; the assigned rights, as mortgaged properties; and the instrument
to the actual damages of P1,067,500. It, however, deleted the amount of itself, as mortgage contract. Moreover, under condition no. 22 of the deed, it was
exemplary damages and reduced the award of moral damages from P100,000 to provided that "failure to comply with the terms and condition of any of the loans
P50,000 and attorney's fees, from P100,000 to P50,000. shall cause all other loans to become due and demandable and all mortgages
shall be foreclosed." And, condition no. 33 provided that if "foreclosure is
The Court of Appeals thus declared as valid the following: (1) the act of DBP in actually accomplished, the usual 10% attorney's fees and 10% liquidated
appropriating Cuba's leasehold rights and interest under Fishpond Lease damages of the total obligation shall be imposed." There is, therefore, no shred
Agreement No. 2083; (2) the deeds of assignment executed by Cuba in favor of of doubt that a mortgage was intended.
DBP; (3) the deed of conditional sale between CUBA and DBP; and (4) the deed
Besides, in their stipulation of facts the parties admitted that the assignment was improvements thereon and pay the same, to sell or otherwise
by way of security for the payment of the loans; thus: dispose of whatever rights the Assignor has or might have
over said property and/or its improvements and perform any
3. As security for said loans, plaintiff Lydia P. Cuba executed other act which the Assignee may deem convenient to protect
two Deeds of Assignment of her Leasehold Rights. its interest. All expenses advanced by the Assignee in
connection with purpose above indicated which shall bear the
same rate of interest aforementioned are also guaranteed by
In People's Bank & Trust Co. vs. Odom,9 this Court had the occasion to rule that
an assignment to guarantee an obligation is in effect a mortgage. this Assignment. Any amount received from rents,
administration, sale or disposal of said property may be
supplied by the Assignee to the payment of repairs,
We find no merit in DBP's contention that the assignment novated the improvements, taxes, assessments and other incidental
promissory notes in that the obligation to pay a sum of money the loans (under expenses and obligations and the balance, if any, to the
the promissory notes) was substituted by the assignment of the rights over the payment of interest and then on the capital of the indebtedness
fishpond (under the deed of assignment). As correctly pointed out by CUBA, the secured hereby. If after disposal or sale of said property and
said assignment merely complemented or supplemented the notes; both could upon application of total amounts received there shall remain a
stand together. The former was only an accessory to the latter. Contrary to deficiency, said Assignor hereby binds himself to pay the
DBP's submission, the obligation to pay a sum of money remained, and the same to the Assignee upon demand, together with all interest
assignment merely served as security for the loans covered by the promissory thereon until fully paid. The power herein granted shall not be
notes. Significantly, both the deeds of assignment and the promissory notes were revoked as long as the Assignor is indebted to the Assignee
executed on the same dates the loans were granted. Also, the last paragraph of and all acts that may be executed by the Assignee by virtue of
the assignment stated: "The assignor further reiterates and states all terms, said power are hereby ratified.
covenants, and conditions stipulated in the promissory note or notescovering the
proceeds of this loan, making said promissory note or notes, to all intent and
The elements of pactum commissorium are as follows: (1) there should be a
purposes, an integral part hereof."
property mortgaged by way of security for the payment of the principal
obligation, and (2) there should be a stipulation for automatic appropriation by
Neither did the assignment amount to payment by cession under Article 1255 of the creditor of the thing mortgaged in case of non-payment of the principal
the Civil Code for the plain and simple reason that there was only one creditor, obligation within the stipulated period.11
the DBP. Article 1255 contemplates the existence of two or more creditors and
involves the assignment of all the debtor's property.
Condition no. 12 did not provide that the ownership over the leasehold rights
would automatically pass to DBP upon CUBA's failure to pay the loan on time.
Nor did the assignment constitute dation in payment under Article 1245 of the It merely provided for the appointment of DBP as attorney-in-fact with authority,
civil Code, which reads: "Dation in payment, whereby property is alienated to among other things, to sell or otherwise dispose of the said real rights, in case of
the creditor in satisfaction of a debt in money, shall be governed by the law on default by CUBA, and to apply the proceeds to the payment of the loan. This
sales." It bears stressing that the assignment, being in its essence a mortgage, provision is a standard condition in mortgage contracts and is in conformity with
was but a security and not a satisfaction of indebtedness. 10 Article 2087 of the Civil Code, which authorizes the mortgagee to foreclose the
mortgage and alienate the mortgaged property for the payment of the principal
We do not, however, buy CUBA's argument that condition no. 12 of the deed of obligation.
assignment constitutedpactum commissorium. Said condition reads:
DBP, however, exceeded the authority vested by condition no. 12 of the deed of
12. That effective upon the breach of any condition of this assignment. As admitted by it during the pre-trial, it had "[w]ithout foreclosure
assignment, the Assignor hereby appoints the Assignee his proceedings, whether judicial or extrajudicial, . . . appropriated the [l]easehold
Attorney-in-fact with full power and authority to take actual [r]ights of plaintiff Lydia Cuba over the fishpond in question." Its contention
possession of the property above-described, together with all that it limited itself to mere administration by posting caretakers is further belied
improvements thereon, subject to the approval of the Secretary by the deed of conditional sale it executed in favor of CUBA. The deed stated:
of Agriculture and Natural Resources, to lease the same or any
portion thereof and collect rentals, to make repairs or
WHEREAS, the Vendor [DBP] by virtue of a deed of In view of the false representation of DBP that it had already foreclosed the
assignment executed in its favor by the herein vendees [Cuba mortgage, the Bureau of Fisheries cancelled CUBA's original lease permit,
spouses] the former acquired all the right and interest of the approved the deed of conditional sale, and issued a new permit in favor of
latter over the above-described property; CUBA. Said acts which were predicated on such false representation, as well as
the subsequent acts emanating from DBP's appropriation of the leasehold rights,
xxx xxx xxx should therefore be set aside. To validate these acts would open the floodgates to
circumvention of Article 2088 of the Civil Code.
The title to the real estate property [sic] and all improvements
thereon shall remain in the name of the Vendor until after the Even in cases where foreclosure proceedings were had, this Court had not
purchase price, advances and interest shall have been fully hesitated to nullify the consequent auction sale for failure to comply with the
paid. (Emphasis supplied). requirements laid down by law, such as Act No. 3135, as amended. 15 With more
reason that the sale of property given as security for the payment of a debt be set
It is obvious from the above-quoted paragraphs that DBP had appropriated and aside if there was no prior fore closure proceeding.
taken ownership of CUBA's leasehold rights merely on the strength of the deed
of assignment. Hence, DBP should render an accounting of the income derived from the
operation of the fishpond in question and apply the said income in accordance
with condition no. 12 of the deed of assignment which provided: "Any amount
DBP cannot take refuge in condition no. 12 of the deed of assignment to justify
its act of appropriating the leasehold rights. As stated earlier, condition no. 12 received from rents, administration, . . . may be applied to the payment of repairs,
did not provide that CUBA's default would operate to vest in DBP ownership of improvements, taxes, assessment, and other incidental expenses and obligations
and the balance, if any, to the payment of interest and then on the capital of the
the said rights. Besides, an assignment to guarantee an obligation, as in the
indebtedness. . ."
present case, is virtually a mortgage and not an absolute conveyance of
title which confers ownership on the assignee.12
We shall now take up the issue of damages.
At any rate, DBP's act of appropriating CUBA's leasehold rights was violative of
Article 2088 of the Civil Code, which forbids a credit or from appropriating, or Article 2199 provides:
disposing of, the thing given as security for the payment of a debt.
Except as provided by law or by stipulation, one is entitled to
The fact that CUBA offered and agreed to repurchase her leasehold rights from an adequate compensation only for such pecuniary loss
DBP did not estop her from questioning DBP's act of appropriation. Estoppel is suffered by him as he has duly proved. Such compensation is
unavailing in this case. As held by this Court in some cases, 13 estoppel cannot referred to as actual or compensatory damages.
give validity to an act that is prohibited by law or against public policy. Hence,
the appropriation of the leasehold rights, being contrary to Article 2088 of the Actual or compensatory damages cannot be presumed, but must be proved with
Civil Code and to public policy, cannot be deemed validated by estoppel. reasonable degree of certainty. 16 A court cannot rely on speculations, conjectures,
or guesswork as to the fact and amount of damages, but must depend upon
Instead of taking ownership of the questioned real rights upon default by CUBA, competent proof that they have been suffered by the injured party and on the
DBP should have foreclosed the mortgage, as has been stipulated in condition no. best obtainable evidence of the actual amount thereof.17 It must point out
22 of the deed of assignment. But, as admitted by DBP, there was no such specific facts which could afford a basis for measuring whatever compensatory
foreclosure. Yet, in its letter dated 26 October 1979, addressed to the Minister of or actual damages are borne.18
Agriculture and Natural Resources and coursed through the Director of the
Bureau of Fisheries and Aquatic Resources, DBP declared that it In the present case, the trial court awarded in favor of CUBA P1,067,500 as
"had foreclosed the mortgage and enforced the assignment of leasehold rights on actual damages consisting of P550,000 which represented the value of the
March 21, 1979 for failure of said spouses [Cuba spouces] to pay their loan alleged lost articles of CUBA and P517,500 which represented the value of the
amortizations."14 This only goes to show that DBP was aware of the necessity of 230,000 pieces of bangus allegedly stocked in 1979 when DBP first ejected
foreclosure proceedings. CUBA from the fishpond and the adjoining house. This award was affirmed by
the Court of Appeals.
We find that the alleged loss of personal belongings and equipment was not conformably with Article 2219(10), in relation to Article 21, of the Civil Code.
proved by clear evidence. Other than the testimony of CUBA and her caretaker, Exemplary or corrective damages in the amount of P25,000 should likewise be
there was no proof as to the existence of those items before DBP took over the awarded by way of example or correction for the public good. 20 There being an
fishpond in question. As pointed out by DBP, there was not "inventory of the award of exemplary damages, attorney's fees are also recoverable.21
alleged lost items before the loss which is normal in a project which sometimes,
if not most often, is left to the care of other persons." Neither was a single WHEREFORE, the 25 May 1994 Decision of the Court of Appeals in CA-G.R.
receipt or record of acquisition presented. CV No. 26535 is hereby REVERSED, except as to the award of P50,000 as
moral damages, which is hereby sustained. The 31 January 1990 Decision of the
Curiously, in her complaint dated 17 May 1985, CUBA included "losses of Regional Trial Court of Pangasinan, Branch 54, in Civil Case No. A-1574 is
property" as among the damages resulting from DBP's take-over of the fishpond. MODIFIED setting aside the finding that condition no. 12 of the deed of
Yet, it was only in September 1985 when her son and a caretaker went to the assignment constituted pactum commissorium and the award of actual damages;
fishpond and the adjoining house that she came to know of the alleged loss of and by reducing the amounts of moral damages from P100,000 to P50,000; the
several articles. Such claim for "losses of property," having been exemplary damages, from P50,000 to P25,000; and the attorney's fees, from
made before knowledge of the alleged actual loss, was therefore speculative. P100,000 to P20,000. The Development Bank of the Philippines is hereby
The alleged loss could have been a mere afterthought or subterfuge to justify her ordered to render an accounting of the income derived from the operation of the
claim for actual damages. fishpond in question.

With regard to the award of P517,000 representing the value of the alleged Let this case be REMANDED to the trial court for the reception of the income
230,000 pieces of bangus which died when DBP took possession of the fishpond statement of DBP, as well as the statement of the account of Lydia P. Cuba, and
in March 1979, the same was not called for. Such loss was not duly proved; for the determination of each party's financial obligation to one another.
besides, the claim therefor was delayed unreasonably. From 1979 until after the
filing of her complaint in court in May 1985, CUBA did not bring to the SO ORDERED.
attention of DBP the alleged loss. In fact, in her letter dated 24 October
1979,19 she declared:
G.R. No. 111692 February 9, 1996
1. That from February to May 1978, I was then seriously ill in ALEJANDRO FUENTES, JR., petitioner, vs. COURT OF APPEALS and
Manila and within the same period I neglected the PEOPLE OF THE PHILIPPINES, respondents.
management and supervision of the cultivation and harvest of
the produce of the aforesaid fishpond thereby resulting to the
Still professing innocence and insisting that he is a victim of mistaken identity,
irreparable loss in the produce of the same in the amount of
petitioner Alejandro Fuentes, Jr., seeks reversal of the decision of the Court of
about P500,000.00 to my great damage and prejudice due to
Appeals affirming his conviction for murder.1
fraudulent acts of some of my fishpond workers.
At four o'clock in the morning of 24 June 1989 Julieto Malaspina together with
Nowhere in the said letter, which was written seven months after DBP took
Godofredo Llames, Honorio Osok and Alberto Toling, was at a benefit dance at
possession of the fishpond, did CUBA intimate that upon DBP's take-over there
Dump Site, Tudela, Trento, Agusan del Sur. Petitioner called Malaspina and
was a total of 230,000 pieces of bangus, but all of which died because of DBP's
placed his right arm on the shoulder of the latter saying, "Before, I saw you with
representatives prevented her men from feeding the fish.
a long hair but now you have a short hair." 2 Suddenly petitioner stabbed
Malaspina in the abdomen with a hunting knife. Malaspina fell to the ground
The award of actual damages should, therefore, be struck down for lack of and his companions rushed to his side. Petitioner fled. Before the victim
sufficient basis. succumbed to the gaping wound on his abdomen he muttered that Alejandro
Fuentes, Jr., stabbed him.3
In view, however, of DBP's act of appropriating CUBA's leasehold rights which
was contrary to law and public policy, as well as its false representation to the Dr. Porfirio L. Salubre, the Rural Health Physician who autopsied the cadaver of
then Ministry of Agriculture and Natural Resources that it had "foreclosed the Julieto Malaspina on 24 July 1989, reported that death was due to "stab wound
mortgage," an award of moral damages in the amount of P50,000 is in order
at left lumbar region 1-1/2 in. in length with extracavitation of the small and killing, testified that Alejandro Fuentes, Jr., the petitioner, and "Jonie" Fuentes
large intestines."4 are one and the same person. Thus -

Petitioner claims on the other hand that it was his cousin Zoilo Fuentes, COURT:
Jr., alias "Jonie" who knifed Malaspina; that when the victim was killed he was
conversing with him; that he was compelled to run away when he heard that Q :Who is this Joni Fuentes and Alejandro Fuentes?
somebody with a bolo and spear would "kill all those from San Isidro" because
"Jonie," the killer, was from that place; that since he was also from San Isidro he A:That Joni Fuentes is the same of that or the accused Alejandro Fuentes. I do
sought refuge in his brother's house where he met "Jonie;" that "Jonie" admitted
not know his real name but he is called as Joni, sir, . . . 7
spontaneously that he stabbed Malaspina because after a boxing match before
the latter untied his gloves and punched him; that as there were many persons
milling around the house "Jonie" jumped out and escaped through the window; On cross-examination witness Biscocho further admitted that he himself would
that he was arrested at eight o'clock in the morning of 24 June 1989 while he call petitioner Alejandro Fuentes, Jr., as "Joni" or "Jonie" Fuentes, as some of
was in a store in the barangay.5 his friends did, but victim Malaspina occasionally called petitioner "Junior". 8

The Regional Trial Court of Prosperidad, Agusan del Sur, found petitioner guilty Petitioner would make much of the alleged confession of Zoilo Fuentes, Jr.,
of murder qualified by treachery and imposed on him an indeterminate prison since it is a declaration against penal interest and therefore an exception to the
term of ten (10) years and one (1) day of prison mayor as minimum to seventeen hearsay rule. The so-called confession of Zoilo was allegedly given to
(17) years and four (4) months of reclusion temporal as maximum, to indemnify Felicisimo Fuentes, the uncle of petitioner and Zoilo, who in turn relayed the
the heirs of the victim Julieto Malaspina the amount of P50,000.00 and to pay matter to P/Sgt. Benjamin Conde, Jr. Felicisimo testified that on 24 June 1989
P8,300.00 as actual damages plus costs.6 while he was at Barangay San Isidro, Zoilo Fuentes, Jr., confessed that he killed
Malaspina in "retaliation;" that he even showed him the knife he used and asked
his help in finding a lawyer, in securing bail and, if possible, in working out a
The Court of Appeals affirmed the judgment of the trial court; hence, this settlement with the relatives of the deceased. The following day however he
petition for review. learned that the self-confessed killer was gone and that petitioner had been
arrested for a crime he did not commit.9
Petitioner contends that the appellate court erred when it held that petitioner was
positively and categorically identified as the killer of Malaspina, in affirming the
For his part, Station Commander P/Sgt. Conde, Jr., testified that after the
judgment of conviction and in holding petitioner liable for damages to the heirs criminal information for murder was filed on 26 July 1989, petitioner met
of the victim.
Felicisimo who informed him of the disclosure by Zoilo. Conde then advised
Felicisimo that if it was true that it was Zoilo who fatally stabbed Malaspina
Petitioner points to an alleged inconsistency between the testimonies of Felicisimo must persuade Zoilo to surrender. Conde then personally went to
prosecution witnesses Alberto Toling and Honorio Osok to the effect that they Barangay San Isidro to investigate. There he was told by the townsfolk that
saw petitioner stab Malaspina on the right lumbar region, and the testimony of Zoilo had already fled.10
the attending physician that the victim was stabbed on the left lumbar region.
One of the recognized exceptions to the hearsay rule is that pertaining to
This discrepancy is inconsequential. What is material is that Malaspina was declarations made against interest. Sec. 38 of Rule 130 of the Rules of Court
stabbed to death and that three (3) prosecution witnesses positively identified provides that "(t)he declaration made by a person deceased, or unable to testify,
petitioner as the knife wielder. It must be stressed that these witnesses had against the interest of the declarant, if the fact asserted in the declaration was at
known petitioner for quite some time and never had any personal the time it was made so far contrary to declarant's own interest, that a reasonable
misunderstanding nor altercation with the latter as to create any suspicion that man in his position would not have made the declaration unless he believed it to
they were impelled by ill motives to falsely implicate him. be true, may be received in evidence against himself or his successors in interest
and against third persons." The admissibility in evidence of such declaration is
That it was another person who committed the offense is too incredible. No less grounded on necessity and trustworthiness.11
than petitioner's own witness, Nerio Biscocho who claimed he also saw the
There are three (3) essential requisites for the admissibility of a declaration of evidence that can break the prosecution and assure the acquittal of the
against interest: (a) the declarant must not be available to testify; (b) the accused. Other than the gratuitous statements of accused-appellant and his uncle
declaration must concern a fact cognizable by the declarant; and (c) the to the effect that Zoilo admitted having killed Malaspina, the records show that
circumstances must render it improbable that a motive to falsify existed. the defense did not exert any serious effort to produce Zoilo as a witness. Lest
we be misunderstood, the Court is always for the admission of evidence that
In the instant case, we find that the declaration particularly against penal interest would let an innocent declaration of guilt by the real culprit. But this can be
attributed to Zoilo Fuentes Jr. is not admissible in evidence as an exception to open to abuse, as when the extrajudicial statement is not even authenticated thus
the hearsay rule. We are not unaware of People v. Toledo, 12 a 1928 case, where increasing the probability of its fabrication; it is made to persons who have every
Justice Malcolm writing for the Court endeavored to reexamine the declaration reason to lie and falsify; and it is not altogether clear that the declarant himself is
of third parties made contrary to their penal interest. In that case, the unable to testify. Thus, for this case at least, exclusion is the prudent recourse as
protagonists Holgado and Morales engaged in a bolo duel. Morales was killed explained in Toledo -
almost instantly. Holgado who was seriously wounded gave a sworn statement
(Exh. 1) before the municipal president declaring that when he and Morales The purpose of all evidence is to get at the truth. The reason for the
fought there was nobody else present. One (1) month later Holgado died from hearsay rule is that the extrajudicial and unsworn statement of another
his wounds. While the Court was agreed that Toledo, who reportedly intervened is not the best method of serving this purpose. In other words, the great
in the fight and dealt the mortal blow, should be exonerated on reasonable doubt, possibility of the fabrication of falsehoods, and the inability to prove
the members did not reach an accord on the admissibility of Exh. 1. One group their untruth, requires that the doors be closed to such evidence. 15
would totally disregard Exh. 1 since there was ample testimonial evidence to
support an acquittal. The second group considered Exh. 1 as part of the res The Court of Appeals as well as the trial court correctly determined the crime to
gestae as it was made on the same morning when the fight occurred. A third be murder qualified by treachery. The suddenness of the attack, without any
group, to which Justice Malcolm belonged, opined that the court below erred in provocation from the unsuspecting victim, made the stabbing of Malaspina
not admitting Exh. 1 as the statement of a fact against penal interest. treacherous.16 However, the court a quo erred in imposing an indeterminate
prison term of ten (10) years and one (1) day of prison mayor as minimum to
For all its attempt to demonstrate the arbitrariness behind the rejection in certain seventeen (17) years and four (4) months of reclusion temporal as maximum.
cases of declarations against penal interest, the Toledo case cannot be applied in Murder under Art. 248 of The Revised Penal Code is punishable by reclusion
the instant case which is remarkably different. Consider this factual scenario: the temporal in its maximum period to death. Since aside from treachery qualifying
alleged declarant Zoilo Fuentes Jr., a cousin of accused-appellant, verbally the crime to murder there is no other modifying circumstance proved, the
admitted to the latter, and later to their common uncle Felicisimo Fuentes, that medium period of the penalty, i.e. reclusion perpetua, should have been imposed
he (Zoilo) killed the victim because of a grudge, after which he disappeared. on petitioner.17
One striking feature that militates against the acceptance of such a statement is
its patent untrustworthiness. Zoilo who is related to accused-appellant had every Petitioner maintains that assuming that he committed the crime it is error to hold
motive to prevaricate. The same can be said of accused-appellant and his uncle him answerable for P8,300.00 as actual damages on the basis of the mere
Felicisimo. Secondly, we need not resort to legal rhetorics to find that the testimony of the victim's sister, Angelina Serrano, without any tangible
admission of such a statement may likewise be, according to Wigmore, document to support such claim. This is a valid point. in crimes and quasi-delicts,
"shocking to the sense of justice." 13 Let us assume that the trial court did admit the defendant is liable for all damages which are the natural and probable
the statement of Zoilo and on that basis acquitted accused-appellant. Let us consequences of the act or omission complained of.18 To seek recovery for actual
assume further that Zoilo was subsequently captured and upon being confronted damages it is essential that the injured party proves the actual amount of loss
with his admission of guilt readily repudiated the same. There is nothing, with reasonable degree of certainty premised upon competent proof and on the
absolutely nothing, that can bind Zoilo legally to that statement. best evidence available. 19 Courts cannot simply, rely on speculation, conjecture
or guesswork in determining the fact and amount of damages.20
But more importantly, the far weightier reason why the admission against penal
interest cannot be accepted in the instant case is that the declarant is not "unable The award by the court a quo of P8,300.00 as actual damages is not supported
to testify." There is no showing that Zoilo is either dead, mentally incapacitated by the evidence on record. We have only the testimony of the victim's elder
or physically incompetent which Sec. 38 obviously contemplates. His mere sister stating that she incurred expenses of P8,300.00 in connection with the
absence from the jurisdiction does not make him ipso facto unavailable under death of Malaspina. 21 However, no proof of the actual damages was ever
this rule. 14 For it is incumbent upon the defense to produce each and every piece presented in court. Of the expenses alleged to have been incurred, the Court can
only give credence to those supported by receipts and which appear to have been Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN,
genuinely expended in connection with the death of the victim. Since the actual October 19, 1989, pp. 5-6).
amount was not substantiated, the same cannot be granted.22
Because the discomforts somehow interfered with her normal ways, she sought
WHEREFORE, the judgment appealed from finding petitioner ALEJANDRO professional advice. She was advised to undergo an operation for the removal of
FUENTES JR. guilty of MURDER and directing him to indemnify the heirs of a stone in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series
Julieto Malaspina in the amount of P50,000.00 plus costs is AFFIRMED with of examinations which included blood and urine tests (Exhs. "A" and "C")
the modification that the penalty imposed should be as it is corrected which indicated she was fit for surgery.
to reclusion perpetua, and the award of actual damages is deleted.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13,
SO ORDERED. 1988, p. 7), she and her husband Rogelio met for the first time Dr. Orlino
Hozaka (should be Hosaka; see TSN, February 20, 1990, p. 3), one of the
defendants in this case, on June 10, 1985. They agreed that their date at the
G.R. No. 124354 December 29, 1999 operating table at the DLSMC (another defendant), would be on June 17, 1985
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf at 9:00 A.M.. Dr. Hosaka decided that she should undergo a "cholecystectomy"
and as natural guardians of the minors, ROMMEL RAMOS, ROY operation after examining the documents (findings from the Capitol Medical
Center, FEU Hospital and DLSMC) presented to him. Rogelio E. Ramos,
RODERICK RAMOS and RON RAYMOND RAMOS, petitioners,
however, asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in
vs. COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. turn, assured Rogelio that he will get a good anesthesiologist. Dr. Hosaka
ORLINO HOSAKA and DRA. PERFECTA GUTIERREZ, respondents. charged a fee of P16,000.00, which was to include the anesthesiologist's fee and
which was to be paid after the operation (TSN, October 19, 1989, pp. 14-15, 22-
The Hippocratic Oath mandates physicians to give primordial consideration to 23, 31-33; TSN, February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4,
the health and welfare of their patients. If a doctor fails to live up to this precept, 10, 17).
he is made accountable for his acts. A mistake, through gross negligence or
incompetence or plain human error, may spell the difference between life and A day before the scheduled date of operation, she was admitted at one of the
death. In this sense, the doctor plays God on his patient's fate. 1 rooms of the DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN,
October 19,1989, p. 11).
In the case at bar, the Court is called upon to rule whether a surgeon, an
anesthesiologist and a hospital should be made liable for the unfortunate At around 7:30 A.M. of June 17, 1985 and while still in her room, she was
comatose condition of a patient scheduled for cholecystectomy. 2 prepared for the operation by the hospital staff. Her sister-in-law, Herminda
Cruz, who was the Dean of the College of Nursing at the Capitol Medical Center,
Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 was also there for moral support. She reiterated her previous request for
May 1995, which overturned the decision 4 of the Regional Trial Court, dated 30 Herminda to be with her even during the operation. After praying, she was given
January 1992, finding private respondents liable for damages arising from injections. Her hands were held by Herminda as they went down from her room
negligence in the performance of their professional duties towards petitioner to the operating room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio,
Erlinda Ramos resulting in her comatose condition. was also with her (TSN, October 19, 1989, p. 18). At the operating room,
Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the other
defendant, who was to administer anesthesia. Although not a member of the
The antecedent facts as summarized by the trial court are reproduced hereunder:
hospital staff, Herminda introduced herself as Dean of the College of Nursing at
the Capitol Medical Center who was to provide moral support to the patient, to
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old them. Herminda was allowed to stay inside the operating room.
(Exh. "A") robust woman (TSN, October 19, 1989, p. 10). Except for occasional
complaints of discomfort due to pains allegedly caused by the presence of a
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr.
stone in her gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as
Hosaka who was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez
any other woman. Married to Rogelio E. Ramos, an executive of Philippine
thereafter informed Herminda Cruz about the prospect of a delay in the arrival of
Long Distance Telephone Company, she has three children whose names are
Dr. Hosaka. Herminda then went back to the patient who asked, "Mindy, wala Meanwhile, Rogelio, who was outside the operating room,
pa ba ang Doctor"? The former replied, "Huwag kang mag-alaala, darating na saw a respiratory machine being rushed towards the door of
iyon" (Ibid.). the operating room. He also saw several doctors rushing
towards the operating room. When informed by Herminda
Thereafter, Herminda went out of the operating room and informed the patient's Cruz that something wrong was happening, he told her
husband, Rogelio, that the doctor was not yet around (id., p. 13). When she (Herminda) to be back with the patient inside the operating
returned to the operating room, the patient told her, "Mindy, inip na inip na ako, room (TSN, October 19, 1989, pp. 25-28).
ikuha mo ako ng ibang Doctor." So, she went out again and told Rogelio about
what the patient said (id., p. 15). Thereafter, she returned to the operating room. Herminda Cruz immediately rushed back, and saw that the
patient was still in trendelenburg position (TSN, January 13,
At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw
the arrival of the doctor" even as he did his best to find somebody who will the patient taken to the Intensive Care Unit (ICU).
allow him to pull out his wife from the operating room (TSN, October 19, 1989,
pp. 19-20). He also thought of the feeling of his wife, who was inside the About two days thereafter, Rogelio E. Ramos was able to talk
operating room waiting for the doctor to arrive (ibid.). At almost 12:00 noon, he to Dr. Hosaka. The latter informed the former that something
met Dr. Garcia who remarked that he (Dr. Garcia) was also tired of waiting for went wrong during the intubation. Reacting to what was told
Dr. Hosaka to arrive (id., p. 21). While talking to Dr. Garcia at around 12:10 to him, Rogelio reminded the doctor that the condition of his
P.M., he came to know that Dr. Hosaka arrived as a nurse remarked, "Nandiyan wife would not have happened, had he (Dr. Hosaka) looked
na si Dr. Hosaka, dumating na raw." Upon hearing those words, he went down for a good anesthesiologist (TSN, October 19, 1989, p. 31).
to the lobby and waited for the operation to be completed (id., pp. 16, 29-30).
Doctors Gutierrez and Hosaka were also asked by the hospital to explain what
At about 12:15 P.M., Herminda Cruz, who was inside the happened to the patient. The doctors explained that the patient had
operating room with the patient, heard somebody say that "Dr. bronchospasm (TSN, November 15, 1990, pp. 26-27).
Hosaka is already here." She then saw people inside the
operating room "moving, doing this and that, [and] preparing Erlinda Ramos stayed at the ICU for a month. About four months thereafter or
the patient for the operation" (TSN, January 13, 1988, p. 16). on November 15, 1985, the patient was released from the hospital.
As she held the hand of Erlinda Ramos, she then saw Dr.
Gutierrez intubating the hapless patient. She thereafter heard During the whole period of her confinement, she incurred hospital bills
Dr. Gutierrez say, "ang hirap ma-intubate nito, mali yata ang amounting to P93,542.25 which is the subject of a promissory note and affidavit
pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of
of undertaking executed by Rogelio E. Ramos in favor of DLSMC. Since that
the remarks of Dra. Gutierrez, she focused her attention on
fateful afternoon of June 17, 1985, she has been in a comatose condition. She
what Dr. Gutierrez was doing. She thereafter noticed bluish
cannot do anything. She cannot move any part of her body. She cannot see or
discoloration of the nailbeds of the left hand of the hapless
hear. She is living on mechanical means. She suffered brain damage as a result
Erlinda even as Dr. Hosaka approached her. She then heard Dr. of the absence of oxygen in her brain for four to five minutes (TSN, November 9,
Hosaka issue an order for someone to call Dr. Calderon, 1989, pp. 21-22). After being discharged from the hospital, she has been staying
another anesthesiologist (id., p. 19). After Dr. Calderon
in their residence, still needing constant medical attention, with her husband
arrived at the operating room, she saw this anesthesiologist
Rogelio incurring a monthly expense ranging from P8,000.00 to P10,000.00
trying to intubate the patient. The patient's nailbed became
(TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be suffering
bluish and the patient was placed in a trendelenburg position
from "diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN,
— a position where the head of the patient is placed in a December 21, 1989,
position lower than her feet which is an indication that there is p. 6). 5
a decrease of blood supply to the patient's brain (Id., pp. 19-
20). Immediately thereafter, she went out of the operating
room, and she told Rogelio E. Ramos "that something wrong Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the
was . . . happening" (Ibid.). Dr. Calderon was then able to Regional Trial Court of Quezon City against herein private respondents alleging
intubate the patient (TSN, July 25, 1991, p. 9). negligence in the management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the possible cause of was called to try to intubate the patient after her (the patient's) nailbed turned
Erlinda's injury. Plaintiff presented the testimonies of Dean Herminda Cruz and bluish, belie their claim. Furthermore, the defendants should have rescheduled
Dr. Mariano Gavino to prove that the sustained by Erlinda was due to lack of the operation to a later date. This, they should have done, if defendants acted
oxygen in her brain caused by the faulty management of her airway by private with due care and prudence as the patient's case was an elective, not an
respondents during the anesthesia phase. On the other hand, private respondents emergency case.
primarily relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist,
to the effect that the cause of brain damage was Erlinda's allergic reaction to the xxx xxx x x x WHEREFORE, and in view of the foregoing,
anesthetic agent, Thiopental Sodium (Pentothal). judgment is rendered in favor of the plaintiffs and against the defendants.
Accordingly, the latter are ordered to pay, jointly and severally, the former the
After considering the evidence from both sides, the Regional Trial Court following sums of money, to wit:
rendered judgment in favor of petitioners, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda
After evaluating the evidence as shown in the finding of facts set forth earlier, Ramos reckoned from November 15, 1985 or in the total sum of P632,000.00 as
and applying the aforecited provisions of law and jurisprudence to the case at of April 15, 1992, subject to its being updated;
bar, this Court finds and so holds that defendants are liable to plaintiffs for
damages. The defendants were guilty of, at the very least, negligence in the 2) the sum of P100,000.00 as reasonable attorney's fees;
performance of their duty to plaintiff-patient Erlinda Ramos.
3) the sum of P800,000.00 by way of moral damages and the further sum of
On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to P200,000,00 by way of exemplary damages; and,
exercise reasonable care in not only intubating the patient, but also in not
repeating the administration of atropine (TSN, August 20, 1991, pp. 5-10),
4) the costs of the suit.
without due regard to the fact that the patient was inside the operating room for
almost three (3) hours. For after she committed a mistake in intubating [the]
patient, the patient's nailbed became bluish and the patient, thereafter, was SO ORDERED. 7
placed in trendelenburg position, because of the decrease of blood supply to the
patient's brain. The evidence further shows that the hapless patient suffered brain Private respondents seasonably interposed an appeal to the Court of Appeals.
damage because of the absence of oxygen in her (patient's) brain for The appellate court rendered a Decision, dated 29 May 1995, reversing the
approximately four to five minutes which, in turn, caused the patient to become findings of the trial court. The decretal portion of the decision of the appellate
comatose. court reads:

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of WHEREFORE, for the foregoing premises the appealed decision is hereby
Dr. Perfecta Gutierrez whom he had chosen to administer anesthesia on the REVERSED, and the complaint below against the appellants is hereby ordered
patient as part of his obligation to provide the patient a good anesthesiologist', DISMISSED. The counterclaim of appellant De Los Santos Medical Center is
and for arriving for the scheduled operation almost three (3) hours late. GRANTED but only insofar as appellees are hereby ordered to pay the unpaid
hospital bills amounting to P93,542.25, plus legal interest for justice must be
On the part of DLSMC (the hospital), this Court finds that it is liable for the acts tempered with mercy.
of negligence of the doctors in their "practice of medicine" in the operating room.
Moreover, the hospital is liable for failing through its responsible officials, to SO ORDERED. 8
cancel the scheduled operation after Dr. Hosaka inexcusably failed to arrive on
time. The decision of the Court of Appeals was received on 9 June 1995 by petitioner
Rogelio Ramos who was mistakenly addressed as "Atty. Rogelio Ramos." No
In having held thus, this Court rejects the defense raised by defendants that they copy of the decision, however, was sent nor received by the Coronel Law Office,
have acted with due care and prudence in rendering medical services to plaintiff- then counsel on record of petitioners. Rogelio referred the decision of the
patient. For if the patient was properly intubated as claimed by them, the patient appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4)
would not have become comatose. And, the fact that another anesthesiologist days before the expiration of the reglementary period for filing a motion for
reconsideration. On the same day, Atty. Ligsay, filed with the appellate court a II
motion for extension of time to file a motion for reconsideration. The motion for
reconsideration was submitted on 4 July 1995. However, the appellate court IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID
denied the motion for extension of time in its Resolution dated 25 July NOT CAUSE THE UNFORTUNATE COMATOSE CONDITION OF
1995. 9Meanwhile, petitioners engaged the services of another counsel, Atty. PETITIONER ERLINDA RAMOS;
Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
admit the motion for reconsideration contending that the period to file the
III
appropriate pleading on the assailed decision had not yet commenced to run as
the Division Clerk of Court of the Court of Appeals had not yet served a copy
thereof to the counsel on record. Despite this explanation, the appellate court IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11
still denied the motion to admit the motion for reconsideration of petitioners in
its Resolution, dated 29 March 1996, primarily on the ground that the fifteen- Before we discuss the merits of the case, we shall first dispose of the procedural
day (15) period for filing a motion for reconsideration had already expired, to issue on the timeliness of the petition in relation to the motion for
wit: reconsideration filed by petitioners with the Court of Appeals. In their
Comment, 12 private respondents contend that the petition should not be given
We said in our Resolution on July 25, 1995, that the filing of a Motion for due course since the motion for reconsideration of the petitioners on the decision
Reconsideration cannot be extended; precisely, the Motion for Extension (Rollo, of the Court of Appeals was validly dismissed by the appellate court for having
p. 12) was denied. It is, on the other hand, admitted in the latter Motion that been filed beyond the reglementary period. We do not agree.
plaintiffs/appellees received a copy of the decision as early as June 9, 1995.
Computation wise, the period to file a Motion for Reconsideration expired on A careful review of the records reveals that the reason behind the delay in filing
June 24. The Motion for Reconsideration, in turn, was received by the Court of the motion for reconsideration is attributable to the fact that the decision of the
Appeals already on July 4, necessarily, the 15-day period already passed. For Court of Appeals was not sent to then counsel on record of petitioners, the
that alone, the latter should be denied. Coronel Law Office. In fact, a copy of the decision of the appellate court was
instead sent to and received by petitioner Rogelio Ramos on 9 June 1995
Even assuming admissibility of the Motion for the Reconsideration, but after wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the
considering the Comment/Opposition, the former, for lack of merit, is hereby other communications received by petitioner Rogelio Ramos, the appellate court
DENIED. SO ORDERED. 10 apparently mistook him for the counsel on record. Thus, no copy of the decision
of the counsel on record. Petitioner, not being a lawyer and unaware of the
prescriptive period for filing a motion for reconsideration, referred the same to a
A copy of the above resolution was received by Atty. Sillano on 11 April 1996. legal counsel only on 20 June 1995.
The next day, or on 12 April 1996, Atty. Sillano filed before this Court a motion
for extension of time to file the present petition for certiorari under Rule 45. The
Court granted the motion for extension of time and gave petitioners additional It is elementary that when a party is represented by counsel, all notices should be
thirty (30) days after the expiration of the fifteen-day (15) period counted from sent to the party's lawyer at his given address. With a few exceptions, notice to a
the receipt of the resolution of the Court of Appeals within which to submit the litigant without notice to his counsel on record is no notice at all. In the present
petition. The due date fell on 27 May 1996. The petition was filed on 9 May case, since a copy of the decision of the appellate court was not sent to the
1996, well within the extended period given by the Court. counsel on record of petitioner, there can be no sufficient notice to speak of.
Hence, the delay in the filing of the motion for reconsideration cannot be taken
against petitioner. Moreover, since the Court of Appeals already issued a second
Petitioners assail the decision of the Court of Appeals on the following grounds:
Resolution, dated 29 March 1996, which superseded the earlier resolution issued
on 25 July 1995, and denied the motion for reconsideration of petitioner, we
I believed that the receipt of the former should be considered in determining the
timeliness of the filing of the present petition. Based on this, the petition before
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF us was submitted on time.
RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND DR.
JAMORA; After resolving the foregoing procedural issue, we shall now look into the merits
of the case. For a more logical presentation of the discussion we shall first
consider the issue on the applicability of the doctrine of res ipsa loquiturto the 3. The possibility of contributing conduct which would make the plaintiff
instant case. Thereafter, the first two assigned errors shall be tackled in relation responsible is eliminated. 21
to the res ipsa loquiturdoctrine.
In the above requisites, the fundamental element is the "control of
Res ipsa loquitur is a Latin phrase which literally means "the thing or the instrumentality" which caused the damage. 22Such element of control must be
transaction speaks for itself." The phrase "res ipsa loquitur'' is a maxim for the shown to be within the dominion of the defendant. In order to have the benefit of
rule that the fact of the occurrence of an injury, taken with the surrounding the rule, a plaintiff, in addition to proving injury or damage, must show a
circumstances, may permit an inference or raise a presumption of negligence, or situation where it is applicable, and must establish that the essential elements of
make out a plaintiff's prima facie case, and present a question of fact for the doctrine were present in a particular incident. 23
defendant to meet with an explanation. 13 Where the thing which caused the
injury complained of is shown to be under the management of the defendant or Medical malpractice 24 cases do not escape the application of this doctrine.
his servants and the accident is such as in ordinary course of things does not Thus, res ipsa loquitur has been applied when the circumstances attendant upon
happen if those who have its management or control use proper care, it affords the harm are themselves of such a character as to justify an inference of
reasonable evidence, in the absence of explanation by the defendant, that the negligence as the cause of that harm. 25 The application of res ipsa loquitur in
accident arose from or was caused by the defendant's want of care. 14 medical negligence cases presents a question of law since it is a judicial function
to determine whether a certain set of circumstances does, as a matter of law,
The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as permit a given inference. 26
a matter of common knowledge and experience, the very nature of certain types
of occurrences may justify an inference of negligence on the part of the person Although generally, expert medical testimony is relied upon in malpractice suits
who controls the instrumentality causing the injury in the absence of some to prove that a physician has done a negligent act or that he has deviated from
explanation by the defendant who is charged with negligence. 15 It is grounded the standard medical procedure, when the doctrine of res ipsa loquitur is availed
in the superior logic of ordinary human experience and on the basis of such by the plaintiff, the need for expert medical testimony is dispensed with because
experience or common knowledge, negligence may be deduced from the mere the injury itself provides the proof of negligence. 27 The reason is that the
occurrence of the accident itself. 16 Hence, res ipsa loquitur is applied in general rule on the necessity of expert testimony applies only to such matters
conjunction with the doctrine of common knowledge. clearly within the domain of medical science, and not to matters that are within
the common knowledge of mankind which may be testified to by anyone
However, much has been said that res ipsa loquitur is not a rule of substantive familiar with the facts. 28 Ordinarily, only physicians and surgeons of skill and
law and, as such, does not create or constitute an independent or separate ground experience are competent to testify as to whether a patient has been treated or
of liability. 17 Instead, it is considered as merely evidentiary or in the nature of a operated upon with a reasonable degree of skill and care. However, testimony as
procedural rule. 18 It is regarded as a mode of proof, or a mere procedural of to the statements and acts of physicians and surgeons, external appearances, and
convenience since it furnishes a substitute for, and relieves a plaintiff of, the manifest conditions which are observable by any one may be given by non-
burden of producing specific proof of negligence. 19 In other words, mere expert witnesses. 29 Hence, in cases where the res ipsa loquitur is applicable, the
invocation and application of the doctrine does not dispense with the court is permitted to find a physician negligent upon proper proof of injury to
requirement of proof of negligence. It is simply a step in the process of such the patient, without the aid of expert testimony, where the court from its fund of
proof, permitting the plaintiff to present along with the proof of the accident, common knowledge can determine the proper standard of care. 30 Where
enough of the attending circumstances to invoke the doctrine, creating an common knowledge and experience teach that a resulting injury would not have
inference or presumption of negligence, and to thereby place on the defendant occurred to the patient if due care had been exercised, an inference of negligence
the burden of going forward with the proof. 20 Still, before resort to the doctrine may be drawn giving rise to an application of the doctrine of res ipsa
may be allowed, the following requisites must be satisfactorily shown: loquitur without medical evidence, which is ordinarily required to show not only
what occurred but how and why it occurred. 31 When the doctrine is appropriate,
1. The accident is of a kind which ordinarily does not occur in the absence of all that the patient must do is prove a nexus between the particular act or
someone's negligence; omission complained of and the injury sustained while under the custody and
management of the defendant without need to produce expert medical testimony
to establish the standard of care. Resort to res ipsa loquitur is allowed because
2. It is caused by an instrumentality within the exclusive control of the defendant
there is no other way, under usual and ordinary conditions, by which the patient
or defendants; and
can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following The plaintiff herein submitted himself for a mastoid operation and delivered his
situations: leaving of a foreign object in the body of the patient after an person over to the care, custody and control of his physician who had complete
operation, 32 injuries sustained on a healthy part of the body which was not and exclusive control over him, but the operation was never performed. At the
under, or in the area, of treatment, 33 removal of the wrong part of the body time of submission he was neurologically sound and physically fit in mind and
when another part was intended, 34 knocking out a tooth while a patient's jaw body, but he suffered irreparable damage and injury rendering him decerebrate
was under anesthetic for the removal of his tonsils, 35 and loss of an eye while and totally incapacitated. The injury was one which does not ordinarily occur in
the patient plaintiff was under the influence of anesthetic, during or following an the process of a mastoid operation or in the absence of negligence in the
operation for appendicitis, 36 among others. administration of an anesthetic, and in the use and employment of an
endoctracheal tube. Ordinarily a person being put under anesthesia is not
Nevertheless, despite the fact that the scope of res ipsa loquitur has been rendered decerebrate as a consequence of administering such anesthesia in the
measurably enlarged, it does not automatically apply to all cases of medical absence of negligence. Upon these facts and under these circumstances a layman
negligence as to mechanically shift the burden of proof to the defendant to show would be able to say, as a matter of common knowledge and observation, that
that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or the consequences of professional treatment were not as such as would ordinarily
ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, have followed if due care had been exercised.
depending upon the circumstances of each case. It is generally restricted to
situations in malpractice cases where a layman is able to say, as a matter of Here the plaintiff could not have been guilty of contributory negligence because
common knowledge and observation, that the consequences of professional care he was under the influence of anesthetics and unconscious, and the
were not as such as would ordinarily have followed if due care had been circumstances are such that the true explanation of event is more accessible to
exercised. 37 A distinction must be made between the failure to secure results, the defendants than to the plaintiff for they had the exclusive control of the
and the occurrence of something more unusual and not ordinarily found if the instrumentalities of anesthesia.
service or treatment rendered followed the usual procedure of those skilled in
that particular practice. It must be conceded that the doctrine of res ipsa Upon all the facts, conditions and circumstances alleged in Count II it is held
loquitur can have no application in a suit against a physician or surgeon which that a cause of action is stated under the doctrine of res ipsa loquitur. 44
involves the merits of a diagnosis or of a scientific treatment. 38 The physician or
surgeon is not required at his peril to explain why any particular diagnosis was Indeed, the principles enunciated in the aforequoted case apply with equal force
not correct, or why any particular scientific treatment did not produce the
here. In the present case, Erlinda submitted herself for cholecystectomy and
desired result. 39 Thus, res ipsa loquitur is not available in a malpractice suit if
expected a routine general surgery to be performed on her gall bladder. On that
the only showing is that the desired result of an operation or treatment was not
fateful day she delivered her person over to the care, custody and control of
accomplished. 40The real question, therefore, is whether or not in the process of
private respondents who exercised complete and exclusive control over her. At
the operation any extraordinary incident or unusual event outside of the routine the time of submission, Erlinda was neurologically sound and, except for a few
performance occurred which is beyond the regular scope of customary minor discomforts, was likewise physically fit in mind and body. However,
professional activity in such operations, which, if unexplained would themselves
during the administration of anesthesia and prior to the performance of
reasonably speak to the average man as the negligent cause or causes of the
cholecystectomy she suffered irreparable damage to her brain. Thus, without
untoward consequence. 41 If there was such extraneous interventions, the
undergoing surgery, she went out of the operating room already decerebrate and
doctrine of res ipsa loquitur may be utilized and the defendant is called upon to
totally incapacitated. Obviously, brain damage, which Erlinda sustained, is an
explain the matter, by evidence of exculpation, if he could. 42 injury which does not normally occur in the process of a gall bladder operation.
In fact, this kind of situation does not in the absence of negligence of someone
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will in the administration of anesthesia and in the use of endotracheal tube. Normally,
hereinafter be explained, the damage sustained by Erlinda in her brain prior to a a person being put under anesthesia is not rendered decerebrate as a
scheduled gall bladder operation presents a case for the application of res ipsa consequence of administering such anesthesia if the proper procedure was
loquitur. followed. Furthermore, the instruments used in the administration of anesthesia,
including the endotracheal tube, were all under the exclusive control of private
A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda
Kansas Supreme Court in applying the res ipsa loquitur stated: could not have been guilty of contributory negligence because she was under the
influence of anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is We disagree with the findings of the Court of Appeals. We hold that private
injured or destroyed while the patient is unconscious and under the immediate respondents were unable to disprove the presumption of negligence on their part
and exclusive control of the physicians, we hold that a practical administration in the care of Erlinda and their negligence was the proximate cause of her
of justice dictates the application of res ipsa loquitur. Upon these facts and piteous condition.
under these circumstances the Court would be able to say, as a matter of
common knowledge and observation, if negligence attended the management In the instant case, the records are helpful in furnishing not only the logical
and care of the patient. Moreover, the liability of the physicians and the hospital scientific evidence of the pathogenesis of the injury but also in providing the
in this case is not predicated upon an alleged failure to secure the desired results Court the legal nexus upon which liability is based. As will be shown hereinafter,
of an operation nor on an alleged lack of skill in the diagnosis or treatment as in private respondents' own testimonies which are reflected in the transcript of
fact no operation or treatment was ever performed on Erlinda. Thus, upon all stenographic notes are replete of signposts indicative of their negligence in the
these initial determination a case is made out for the application of the doctrine care and management of Erlinda.
of res ipsa loquitur.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda
Nonetheless, in holding that res ipsa loquitur is available to the present case we during the anesthesia phase. As borne by the records, respondent Dra. Gutierrez
are not saying that the doctrine is applicable in any and all cases where injury failed to properly intubate the patient. This fact was attested to by Prof.
occurs to a patient while under anesthesia, or to any and all anesthesia cases. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and
Each case must be viewed in its own light and scrutinized in order to be within petitioner's sister-in-law, who was in the operating room right beside the patient
the res ipsa loquitur coverage. when the tragic event occurred. Witness Cruz testified to this effect:

Having in mind the applicability of the res ipsa loquitur doctrine and the ATTY. PAJARES:
presumption of negligence allowed therein, the Court now comes to the issue of Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?
whether the Court of Appeals erred in finding that private respondents were not A: In particular, I could see that she was intubating the patient.
negligent in the care of Erlinda during the anesthesia phase of the operation and, Q: Do you know what happened to that intubation process administered by Dra.
if in the affirmative, whether the alleged negligence was the proximate cause of Gutierrez?
Erlinda's comatose condition. Corollary thereto, we shall also determine if the ATTY. ALCERA:
Court of Appeals erred in relying on the testimonies of the witnesses for the She will be incompetent Your Honor.
private respondents. COURT:
Witness may answer if she knows.
In sustaining the position of private respondents, the Court of Appeals relied on A: As have said, I was with the patient, I was beside the stretcher holding the
the testimonies of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving left hand of the patient and all of a sudden heard some remarks coming from Dra.
weight to the testimony of Dra. Gutierrez, the Court of Appeals rationalized that Perfecta Gutierrez herself. She was saying "Ang hirap ma-intubate nito, mali
she was candid enough to admit that she experienced some difficulty in the yata ang pagkakapasok. O lumalaki ang tiyan.
endotracheal intubation 45 of the patient and thus, cannot be said to be covering xxx xxx xxx
her negligence with falsehood. The appellate court likewise opined that private ATTY. PAJARES:
respondents were able to show that the brain damage sustained by Erlinda was Q: From whom did you hear those words "lumalaki ang tiyan"?
not caused by the alleged faulty intubation but was due to the allergic reaction of A: From Dra. Perfecta Gutierrez.
the patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, xxx xxx xxx
as testified on by their expert witness, Dr. Jamora. On the other hand, the Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on the
appellate court rejected the testimony of Dean Herminda Cruz offered in favor person of the patient?
of petitioners that the cause of the brain injury was traceable to the wrongful A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where
insertion of the tube since the latter, being a nurse, was allegedly not I was at.
knowledgeable in the process of intubation. In so holding, the appellate court Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
returned a verdict in favor of respondents physicians and hospital and absolved A: I saw him approaching the patient during that time.
them of any liability towards Erlinda and her family. Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of Dr.
Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating room? can tell if it was administered properly. As such, it would not be too difficult to
A: Yes sir. tell if the tube was properly inserted. This kind of observation, we believe, does
Q: What did [s]he do, if any? not require a medical degree to be acceptable.
A: [S]he tried to intubate the patient.
Q: What happened to the patient? At any rate, without doubt, petitioner's witness, an experienced clinical nurse
A: When Dr. Calderon try (sic) to intubate the patient, after a while the patient's whose long experience and scholarship led to her appointment as Dean of the
nailbed became bluish and I saw the patient was placed in trendelenburg Capitol Medical Center School at Nursing, was fully capable of determining
position. whether or not the intubation was a success. She had extensive clinical
xxx xxx xxx experience starting as a staff nurse in Chicago, Illinois; staff nurse and clinical
Q: Do you know the reason why the patient was placed in that trendelenburg instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College
position? of Nursing in San Pablo City; and then Dean of the Capitol Medical Center
A: As far as I know, when a patient is in that position, there is a decrease of School of Nursing. 50Reviewing witness Cruz' statements, we find that the same
blood supply to the brain. 46 were delivered in a straightforward manner, with the kind of detail, clarity,
xxx xxx xxx consistency and spontaneity which would have been difficult to fabricate. With
her clinical background as a nurse, the Court is satisfied that she was able to
The appellate court, however, disbelieved Dean Cruz's testimony in the trial demonstrate through her testimony what truly transpired on that fateful day.
court by declaring that:
Most of all, her testimony was affirmed by no less than respondent Dra.
A perusal of the standard nursing curriculum in our country will show that Gutierrez who admitted that she experienced difficulty in inserting the tube into
intubation is not taught as part of nursing procedures and techniques. Indeed, we Erlinda's trachea, to wit:
take judicial notice of the fact that nurses do not, and cannot, intubate. Even on
the assumption that she is fully capable of determining whether or not a patient ATTY. LIGSAY:
is properly intubated, witness Herminda Cruz, admittedly, did not peep into the Q: In this particular case, Doctora, while you were intubating at your first attempt (sic),
throat of the patient. (TSN, July 25, 1991, p. 13). More importantly, there is no you did not immediately see the trachea?
evidence that she ever auscultated the patient or that she conducted any type of DRA. GUTIERREZ:
examination to check if the endotracheal tube was in its proper place, and to A: Yes sir.
determine the condition of the heart, lungs, and other organs. Thus, witness Q: Did you pull away the tube immediately?
A: You do not pull the . . .
Cruz's categorical statements that appellant Dra. Gutierrez failed to intubate the
Q: Did you or did you not?
appellee Erlinda Ramos and that it was Dra. Calderon who succeeded in doing A: I did not pull the tube.
so clearly suffer from lack of sufficient factual bases. 47 Q: When you said "mahirap yata ito," what were you referring to?
A: "Mahirap yata itong i-intubate," that was the patient.
In other words, what the Court of Appeals is trying to impress is that being a Q: So, you found some difficulty in inserting the tube?
nurse, and considered a layman in the process of intubation, witness Cruz is not A: Yes, because of (sic) my first attempt, I did not see right away. 51
competent to testify on whether or not the intubation was a success.
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard
We do not agree with the above reasoning of the appellate court. Although defense that she encountered hardship in the insertion of the tube in the trachea
witness Cruz is not an anesthesiologist, she can very well testify upon matters on of Erlinda because it was positioned more anteriorly (slightly deviated from the
which she is capable of observing such as, the statements and acts of the normal anatomy of a person) 52 making it harder to locate and, since Erlinda is
physician and surgeon, external appearances, and manifest conditions which are obese and has a short neck and protruding teeth, it made intubation even more
observable by any one. 48 This is precisely allowed under the doctrine of res ipsa difficult.
loquitur where the testimony of expert witnesses is not required. It is the
accepted rule that expert testimony is not necessary for the proof of negligence The argument does not convince us. If this was indeed observed, private
in non-technical matters or those of which an ordinary person may be expected respondents adduced no evidence demonstrating that they proceeded to make a
to have knowledge, or where the lack of skill or want of care is so obvious as to thorough assessment of Erlinda's airway, prior to the induction of anesthesia,
render expert testimony unnecessary. 49 We take judicial notice of the fact that even if this would mean postponing the procedure. From their testimonies, it
anesthesia procedures have become so common, that even an ordinary person
appears that the observation was made only as an afterthought, as a means of A: As I said in my previous statement, it depends on the operative procedure of
defense. the anesthesiologist and in my case, with elective cases and normal cardio-
pulmonary clearance like that, I usually don't do it except on emergency and on
The pre-operative evaluation of a patient prior to the administration of cases that have an abnormalities (sic). 58
anesthesia is universally observed to lessen the possibility of anesthetic
accidents. Pre-operative evaluation and preparation for anesthesia begins when However, the exact opposite is true. In an emergency procedure, there is hardly
the anesthesiologist reviews the patient's medical records and visits with the enough time available for the fastidious demands of pre-operative procedure so
patient, traditionally, the day before elective surgery. 53 It includes taking the that an anesthesiologist is able to see the patient only a few minutes before
patient's medical history, review of current drug therapy, physical examination surgery, if at all. Elective procedures, on the other hand, are operative
and interpretation of laboratory data. 54 The physical examination performed by procedures that can wait for days, weeks or even months. Hence, in these cases,
the anesthesiologist is directed primarily toward the central nervous system, the anesthesiologist possesses the luxury of time to be at the patient's beside to
cardiovascular system, lungs and upper airway. 55 A thorough analysis of the do a proper interview and clinical evaluation. There is ample time to explain the
patient's airway normally involves investigating the following: cervical spine method of anesthesia, the drugs to be used, and their possible hazards for
mobility, temporomandibular mobility, prominent central incisors, diseased or purposes of informed consent. Usually, the pre-operative assessment is
artificial teeth, ability to visualize uvula and the thyromental distance. 56Thus, conducted at least one day before the intended surgery, when the patient is
physical characteristics of the patient's upper airway that could make tracheal relaxed and cooperative.
intubation difficult should be studied. 57 Where the need arises, as when initial
assessment indicates possible problems (such as the alleged short neck and Erlinda's case was elective and this was known to respondent Dra. Gutierrez.
protruding teeth of Erlinda) a thorough examination of the patient's airway Thus, she had all the time to make a thorough evaluation of Erlinda's case prior
would go a long way towards decreasing patient morbidity and mortality. to the operation and prepare her for anesthesia. However, she never saw the
patient at the bedside. She herself admitted that she had seen petitioner only in
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the operating room, and only on the actual date of the cholecystectomy. She
the first time on the day of the operation itself, on 17 June 1985. Before this date, negligently failed to take advantage of this important opportunity. As such, her
no prior consultations with, or pre-operative evaluation of Erlinda was done by attempt to exculpate herself must fail.
her. Until the day of the operation, respondent Dra. Gutierrez was unaware of
the physiological make-up and needs of Erlinda. She was likewise not properly Having established that respondent Dra. Gutierrez failed to perform pre-
informed of the possible difficulties she would face during the administration of operative evaluation of the patient which, in turn, resulted to a wrongful
anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing her patient for intubation, we now determine if the faulty intubation is truly the proximate
the first time only an hour before the scheduled operative procedure was, cause of Erlinda's comatose condition.
therefore, an act of exceptional negligence and professional irresponsibility. The
measures cautioning prudence and vigilance in dealing with human lives lie at
Private respondents repeatedly hammered the view that the cerebral anoxia
the core of the physician's centuries-old Hippocratic Oath. Her failure to follow
which led to Erlinda's coma was due to bronchospasm 59 mediated by her
this medical procedure is, therefore, a clear indicia of her negligence.
allergic response to the drug, Thiopental Sodium, introduced into her system.
Towards this end, they presented Dr. Jamora, a Fellow of the Philippine College
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by of Physicians and Diplomate of the Philippine Specialty Board of Internal
playing around with the trial court's ignorance of clinical procedure, hoping that Medicine, who advanced private respondents' theory that the oxygen deprivation
she could get away with it. Respondent Dra. Gutierrez tried to muddle the which led to anoxic encephalopathy, 60 was due to an unpredictable drug
difference between an elective surgery and an emergency surgery just so her reaction to the short-acting barbiturate. We find the theory of private
failure to perform the required pre-operative evaluation would escape unnoticed. respondents unacceptable.
In her testimony she asserted:
ATTY. LIGSAY: First of all, Dr. Jamora cannot be considered an authority in the field of
Q: Would you agree, Doctor, that it is good medical practice to see the patient a
anesthesiology simply because he is not an anesthesiologist. Since Dr. Jamora is
day before so you can introduce yourself to establish good doctor-patient
a pulmonologist, he could not have been capable of properly enlightening the
relationship and gain the trust and confidence of the patient?
court about anesthesia practice and procedure and their complications. Dr.
DRA. GUTIERREZ:
Jamora is likewise not an allergologist and could not therefore properly advance
expert opinion on allergic-mediated processes. Moreover, he is not a Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter
pharmacologist and, as such, could not have been capable, as an expert would, requiring special knowledge, skill, experience or training which he is shown to
of explaining to the court the pharmacologic and toxic effects of the supposed possess, may be received in evidence.
culprit, Thiopental Sodium (Pentothal).
Generally, to qualify as an expert witness, one must have acquired special
The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an knowledge of the subject matter about which he or she is to testify, either by the
expert witness in the anesthetic practice of Pentothal administration is further study of recognized authorities on the subject or by practical
supported by his own admission that he formulated his opinions on the drug not experience. 63Clearly, Dr. Jamora does not qualify as an expert witness based on
from the practical experience gained by a specialist or expert in the the above standard since he lacks the necessary knowledge, skill, and training in
administration and use of Sodium Pentothal on patients, but only from reading the field of anesthesiology. Oddly, apart from submitting testimony from a
certain references, to wit: specialist in the wrong field, private respondents' intentionally avoided
providing testimony by competent and independent experts in the proper areas.
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion to use Moreover, private respondents' theory, that Thiopental Sodium may have
pentothal as a method of management? produced Erlinda's coma by triggering an allergic mediated response, has no
DR. JAMORA: support in evidence. No evidence of stridor, skin reactions, or wheezing — some
A: We do it in conjunction with the anesthesiologist when they have to intubate of the more common accompanying signs of an allergic reaction — appears on
our patient. record. No laboratory data were ever presented to the court.
Q: But not in particular when you practice pulmonology?
A: No. In any case, private respondents themselves admit that Thiopental induced,
Q: In other words, your knowledge about pentothal is based only on what you allergic-mediated bronchospasm happens only very rarely. If courts were to
have read from books and not by your own personal application of the medicine accept private respondents' hypothesis without supporting medical proof, and
pentothal? against the weight of available evidence, then every anesthetic accident would
A: Based on my personal experience also on pentothal. be an act of God. Evidently, the Thiopental-allergy theory vigorously asserted
Q: How many times have you used pentothal? by private respondents was a mere afterthought. Such an explanation was
A: They used it on me. I went into bronchospasm during my appendectomy. advanced in order to advanced in order to absolve them of any and all
Q: And because they have used it on you and on account of your own personal responsibility for the patient's condition.
experience you feel that you can testify on pentothal here with medical authority?
A: No. That is why I used references to support my claims. 61 In view of the evidence at hand, we are inclined to believe petitioners' stand that
it was the faulty intubation which was the proximate cause of Erlinda's comatose
An anesthetic accident caused by a rare drug-induced bronchospasm properly condition.
falls within the fields of anesthesia, internal medicine-allergy, and clinical
pharmacology. The resulting anoxic encephalopathy belongs to the field of
Proximate cause has been defined as that which, in natural and continuous
neurology. While admittedly, many bronchospastic-mediated pulmonary sequence, unbroken by any efficient intervening cause, produces injury, and
diseases are within the expertise of pulmonary medicine, Dr. Jamora's field, the without which the result would not have occurred. 64 An injury or damage is
anesthetic drug-induced, allergic mediated bronchospasm alleged in this case is
proximately caused by an act or a failure to act, whenever it appears from the
within the disciplines of anesthesiology, allergology and pharmacology. On the
evidence in the case, that the act or omission played a substantial part in
basis of the foregoing transcript, in which the pulmonologist himself admitted
bringing about or actually causing the injury or damage; and that the injury or
that he could not testify about the drug with medical authority, it is clear that the
damage was either a direct result or a reasonably probable consequence of the
appellate court erred in giving weight to Dr. Jamora's testimony as an expert in act or omission. 65 It is the dominant, moving or producing cause.
the administration of Thiopental Sodium.
Applying the above definition in relation to the evidence at hand, faulty
The provision in the rules of evidence 62 regarding expert witnesses states:
intubation is undeniably the proximate cause which triggered the chain of events
leading to Erlinda's brain damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony that the first neck and protruding teeth. 72 Having failed to observe common medical
intubation was a failure. This fact was likewise observed by witness Cruz when standards in pre-operative management and intubation, respondent Dra.
she heard respondent Dra. Gutierrez remarked, "Ang hirap ma-intubate nito, Gutierrez' negligence resulted in cerebral anoxia and eventual coma of Erlinda.
mali yata ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz
noticed abdominal distention on the body of Erlinda. The development of We now determine the responsibility of respondent Dr. Orlino Hosaka as the
abdominal distention, together with respiratory embarrassment indicates that the head of the surgical team. As the so-called "captain of the ship," 73 it is the
endotracheal tube entered the esophagus instead of the respiratory tree. In other surgeon's responsibility to see to it that those under him perform their task in the
words, instead of the intended endotracheal intubation what actually took place proper manner. Respondent Dr. Hosaka's negligence can be found in his failure
was an esophageal intubation. During intubation, such distention indicates that to exercise the proper authority (as the "captain" of the operative team) in not
air has entered the gastrointestinal tract through the esophagus instead of the determining if his anesthesiologist observed proper anesthesia protocols. In fact,
lungs through the trachea. Entry into the esophagus would certainly cause some no evidence on record exists to show that respondent Dr. Hosaka verified if
delay in oxygen delivery into the lungs as the tube which carries oxygen is in the respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does
wrong place. That abdominal distention had been observed during the first not escape us that respondent Dr. Hosaka had scheduled another procedure in a
intubation suggests that the length of time utilized in inserting the endotracheal different hospital at the same time as Erlinda's cholecystectomy, and was in fact
tube (up to the time the tube was withdrawn for the second attempt) was fairly over three hours late for the latter's operation. Because of this, he had little or no
significant. Due to the delay in the delivery of oxygen in her lungs Erlinda time to confer with his anesthesiologist regarding the anesthesia delivery. This
showed signs of cyanosis. 66 As stated in the testimony of Dr. Hosaka, the lack indicates that he was remiss in his professional duties towards his patient. Thus,
of oxygen became apparent only after he noticed that the nailbeds of Erlinda he shares equal responsibility for the events which resulted in Erlinda's condition.
were already blue. 67 However, private respondents contend that a second
intubation was executed on Erlinda and this one was successfully done. We do We now discuss the responsibility of the hospital in this particular incident. The
not think so. No evidence exists on record, beyond private respondents' bare unique practice (among private hospitals) of filling up specialist staff with
claims, which supports the contention that the second intubation was successful.
attending and visiting "consultants," 74 who are allegedly not hospital employees,
Assuming that the endotracheal tube finally found its way into the proper orifice
presents problems in apportioning responsibility for negligence in medical
of the trachea, the same gave no guarantee of oxygen delivery, the hallmark of a
malpractice cases. However, the difficulty is only more apparent than real.
successful intubation. In fact, cyanosis was again observed immediately after the
second intubation. Proceeding from this event (cyanosis), it could not be claimed,
as private respondents insist, that the second intubation was accomplished. Even In the first place, hospitals exercise significant control in the hiring and firing of
granting that the tube was successfully inserted during the second attempt, it was consultants and in the conduct of their work within the hospital premises.
obviously too late. As aptly explained by the trial court, Erlinda already suffered Doctors who apply for "consultant" slots, visiting or attending, are required to
brain damage as a result of the inadequate oxygenation of her brain for about submit proof of completion of residency, their educational qualifications;
four to five minutes. 68 generally, evidence of accreditation by the appropriate board (diplomate),
evidence of fellowship in most cases, and references. These requirements are
carefully scrutinized by members of the hospital administration or by a review
The above conclusion is not without basis. Scientific studies point out that
committee set up by the hospital who either accept or reject the
intubation problems are responsible for one-third (1/3) of deaths and serious
application. 75 This is particularly true with respondent hospital.
injuries associated with anesthesia. 69 Nevertheless, ninety-eight percent (98%)
or the vast majority of difficult intubations may be anticipated by performing a
thorough evaluation of the patient's airway prior to the operation. 70 As stated After a physician is accepted, either as a visiting or attending consultant, he is
beforehand, respondent Dra. Gutierrez failed to observe the proper pre-operative normally required to attend clinico-pathological conferences, conduct bedside
protocol which could have prevented this unfortunate incident. Had appropriate rounds for clerks, interns and residents, moderate grand rounds and patient
diligence and reasonable care been used in the pre-operative evaluation, audits and perform other tasks and responsibilities, for the privilege of being
respondent physician could have been much more prepared to meet the able to maintain a clinic in the hospital, and/or for the privilege of admitting
contingency brought about by the perceived anatomic variations in the patient's patients into the hospital. In addition to these, the physician's performance as a
neck and oral area, defects which would have been easily overcome by a prior specialist is generally evaluated by a peer review committee on the basis of
knowledge of those variations together with a change in technique. 71 In other mortality and morbidity statistics, and feedback from patients, nurses, interns
words, an experienced anesthesiologist, adequately alerted by a thorough pre- and residents. A consultant remiss in his duties, or a consultant who regularly
operative evaluation, would have had little difficulty going around the short falls short of the minimum standards acceptable to the hospital or its peer review
committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their November 1985 up to 15 April 1992, based on monthly expenses for the care of
attending and visiting "consultant" staff. While "consultants" are not, technically the patient estimated at P8,000.00.
employees, a point which respondent hospital asserts in denying all
responsibility for the patient's condition, the control exercised, the hiring, and At current levels, the P8000/monthly amount established by the trial court at the
the right to terminate consultants all fulfill the important hallmarks of an time of its decision would be grossly inadequate to cover the actual costs of
employer-employee relationship, with the exception of the payment of wages. In home-based care for a comatose individual. The calculated amount was not even
assessing whether such a relationship in fact exists, the control test is arrived at by looking at the actual cost of proper hospice care for the patient.
determining. Accordingly, on the basis of the foregoing, we rule that for the What it reflected were the actual expenses incurred and proved by the petitioners
purpose of allocating responsibility in medical negligence cases, an employer- after they were forced to bring home the patient to avoid mounting hospital bills.
employee relationship in effect exists between hospitals and their attending and
visiting physicians. This being the case, the question now arises as to whether or
And yet ideally, a comatose patient should remain in a hospital or be transferred
not respondent hospital is solidarily liable with respondent doctors for
to a hospice specializing in the care of the chronically ill for the purpose of
petitioner's condition. 76
providing a proper milieu adequate to meet minimum standards of care. In the
instant case for instance, Erlinda has to be constantly turned from side to side to
The basis for holding an employer solidarily responsible for the negligence of its prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube.
employee is found in Article 2180 of the Civil Code which considers a person Food preparation should be normally made by a dietitian to provide her with the
accountable not only for his own acts but also for those of others based on the correct daily caloric requirements and vitamin supplements. Furthermore, she
former's responsibility under a relationship of patria potestas. 77 Such has to be seen on a regular basis by a physical therapist to avoid muscle atrophy,
responsibility ceases when the persons or entity concerned prove that they have and by a pulmonary therapist to prevent the accumulation of secretions which
observed the diligence of a good father of the family to prevent damage. 78 In can lead to respiratory complications.
other words, while the burden of proving negligence rests on the plaintiffs, once
negligence is shown, the burden shifts to the respondents (parent, guardian,
Given these considerations, the amount of actual damages recoverable in suits
teacher or employer) who should prove that they observed the diligence of a
arising from negligence should at least reflect the correct minimum cost of
good father of a family to prevent damage.
proper care, not the cost of the care the family is usually compelled to undertake
at home to avoid bankruptcy. However, the provisions of the Civil Code on
In the instant case, respondent hospital, apart from a general denial of its actual or compensatory damages present us with some difficulties.
responsibility over respondent physicians, failed to adduce evidence showing
that it exercised the diligence of a good father of a family in the hiring and
Well-settled is the rule that actual damages which may be claimed by the
supervision of the latter. It failed to adduce evidence with regard to the degree of plaintiff are those suffered by him as he has duly proved. The Civil Code
supervision which it exercised over its physicians. In neglecting to offer such provides:
proof, or proof of a similar nature, respondent hospital thereby failed to
discharge its burden under the last paragraph of Article 2180. Having failed to
do this, respondent hospital is consequently solidarily responsible with its Art. 2199. — Except as provided by law or by stipulation, one is entitled to an
physicians for Erlinda's condition. adequate compensation only for such pecuniary loss suffered by him as he has
duly proved. Such compensation is referred to as actual or compensatory
damages.
Based on the foregoing, we hold that the Court of Appeals erred in accepting
and relying on the testimonies of the witnesses for the private respondents.
Indeed, as shown by the above discussions, private respondents were unable to Our rules on actual or compensatory damages generally assume that at the time
rebut the presumption of negligence. Upon these disquisitions we hold that of litigation, the injury suffered as a consequence of an act of negligence has
private respondents are solidarily liable for damages under Article 2176 79 of the been completed and that the cost can be liquidated. However, these provisions
Civil Code. neglect to take into account those situations, as in this case, where the resulting
injury might be continuing and possible future complications directly arising
from the injury, while certain to occur, are difficult to predict.
We now come to the amount of damages due petitioners. The trial court awarded
a total of P632,000.00 pesos (should be P616,000.00) in compensatory damages
to the plaintiff, "subject to its being updated" covering the period from 15 In these cases, the amount of damages which should be awarded, if they are to
adequately and correctly respond to the injury caused, should be one which
compensates for pecuniary loss incurred and proved, up to the time of These adjustments entail costs, prosthetic replacements and months of physical
trial; and one which would meet pecuniary loss certain to be suffered but which and occupational rehabilitation and therapy. During the lifetime, the prosthetic
could not, from the nature of the case, be made with certainty. 80 In other words, devise will have to be replaced and readjusted to changes in the size of her lower
temperate damages can and should be awarded on top of actual or compensatory limb effected by the biological changes of middle-age, menopause and aging.
damages in instances where the injury is chronic and continuing. And because of Assuming she reaches menopause, for example, the prosthetic will have to be
the unique nature of such cases, no incompatibility arises when both actual and adjusted to respond to the changes in bone resulting from a precipitate decrease
temperate damages are provided for. The reason is that these damages cover two in calcium levels observed in the bones of all post-menopausal women. In other
distinct phases. words, the damage done to her would not only be permanent and lasting, it
would also be permanently changing and adjusting to the physiologic changes
As it would not be equitable — and certainly not in the best interests of the which her body would normally undergo through the years. The replacements,
administration of justice — for the victim in such cases to constantly come changes, and adjustments will require corresponding adjustive physical and
before the courts and invoke their aid in seeking adjustments to the occupational therapy. All of these adjustments, it has been documented, are
compensatory damages previously awarded — temperate damages are painful.
appropriate. The amount given as temperate damages, though to a certain extent
speculative, should take into account the cost of proper care. xxx xxx xxx

In the instant case, petitioners were able to provide only home-based nursing A prosthetic devise, however technologically advanced, will only allow a
care for a comatose patient who has remained in that condition for over a decade. reasonable amount of functional restoration of the motor functions of the lower
Having premised our award for compensatory damages on the amount provided limb. The sensory functions are forever lost. The resultant anxiety, sleeplessness,
by petitioners at the onset of litigation, it would be now much more in step with psychological injury, mental and physical pain are inestimable. 83
the interests of justice if the value awarded for temperate damages would allow
petitioners to provide optimal care for their loved one in a facility which The injury suffered by Erlinda as a consequence of private respondents'
generally specializes in such care. They should not be compelled by dire negligence is certainly much more serious than the amputation in the Valenzuela
circumstances to provide substandard care at home without the aid of case.
professionals, for anything less would be grossly inadequate. Under the
circumstances, an award of P1,500,000.00 in temperate damages would
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She
therefore be reasonable. 81
has been in a comatose state for over fourteen years now. The burden of care has
so far been heroically shouldered by her husband and children, who, in the
In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation intervening years have been deprived of the love of a wife and a mother.
where the injury suffered by the plaintiff would have led to expenses which were
difficult to estimate because while they would have been a direct result of the
Meanwhile, the actual physical, emotional and financial cost of the care of
injury (amputation), and were certain to be incurred by the plaintiff, they were
petitioner would be virtually impossible to quantify. Even the temperate
likely to arise only in the future. We awarded P1,000,000.00 in moral damages
damages herein awarded would be inadequate if petitioner's condition remains
in that case. unchanged for the next ten years.

Describing the nature of the injury, the Court therein stated:


We recognized, in Valenzuela that a discussion of the victim's actual injury
would not even scratch the surface of the resulting moral damage because it
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic would be highly speculative to estimate the amount of emotional and moral pain,
amputation of her left lower extremity at the distal left thigh just above the knee. psychological damage and injury suffered by the victim or those actually
Because of this, Valenzuela will forever be deprived of the full ambulatory affected by the victim's condition. 84 The husband and the children, all
functions of her left extremity, even with the use of state of the art prosthetic petitioners in this case, will have to live with the day to day uncertainty of the
technology. Well beyond the period of hospitalization (which was paid for by patient's illness, knowing any hope of recovery is close to nil. They have
Li), she will be required to undergo adjustments in her prosthetic devise due to fashioned their daily lives around the nursing care of petitioner, altering their
the shrinkage of the stump from the process of healing. long term goals to take into account their life with a comatose patient. They, not
the respondents, are charged with the moral responsibility of the care of the
victim. The family's moral injury and suffering in this case is clearly a real one. shortly thereafter, the vehicle bumped a cement flower pot on the side of the
For the foregoing reasons, an award of P2,000,000.00 in moral damages would road, went off the road, turned turtle and fell into a ditch. Several passengers,
be appropriate. including petitioner Gatchalian, were injured. They were promptly taken to
Bethany Hospital at San Fernando, La Union, for medical treatment. Upon
Finally, by way of example, exemplary damages in the amount of P100,000.00 medical examination, petitioner was found to have sustained physical injuries on
are hereby awarded. Considering the length and nature of the instant suit we are the leg, arm and forehead, specifically described as follows: lacerated wound,
of the opinion that attorney's fees valued at P100,000.00 are likewise proper. forehead; abrasion, elbow, left; abrasion, knee, left; abrasion, lateral surface, leg,
left. 1
Our courts face unique difficulty in adjudicating medical negligence cases
because physicians are not insurers of life and, they rarely set out to On 14 July 1973, while injured. passengers were confined in the hospital, Mrs.
intentionally cause injury or death to their patients. However, intent is Adela Delim, wife of respondent, visited them and later paid for their
immaterial in negligence cases because where negligence exists and is proven, hospitalization and medical expenses. She also gave petitioner P12.00 with
the same automatically gives the injured a right to reparation for the damage which to pay her transportation expense in going home from the hospital.
caused. However, before Mrs. Delim left, she had the injured passengers, including
petitioner, sign an already prepared Joint Affidavit which stated, among other
things:
Established medical procedures and practices, though in constant flux are
devised for the purpose of preventing complications. A physician's experience
with his patients would sometimes tempt him to deviate from established That we were passengers of Thames with Plate No. 52-222 PUJ Phil. 73 and
community practices, and he may end a distinguished career using unorthodox victims after the said Thames met an accident at Barrio Payocpoc Norte, Bauang,
methods without incident. However, when failure to follow established La Union while passing through the National Highway No. 3;
procedure results in the evil precisely sought to be averted by observance of the
procedure and a nexus is made between the deviation and the injury or damage, That after a thorough investigation the said Thames met the accident due to
the physician would necessarily be called to account for it. In the case at bar, the mechanical defect and went off the road and turned turtle to the east canal of the
failure to observe pre-operative assessment protocol which would have road into a creek causing physical injuries to us;
influenced the intubation in a salutary way was fatal to private respondents' case.
xxx xxx x x x That we are no longer interested to file a complaint,
WHEREFORE, the decision and resolution of the appellate court appealed from criminal or civil against the said driver and owner of the said Thames, because
are hereby modified so as to award in favor of petitioners, and solidarily against it was an accident and the said driver and owner of the said Thames have gone
private respondents the following: 1) P1,352,000.00 as actual damages to the extent of helping us to be treated upon our injuries.
computed as of the date of promulgation of this decision plus a monthly
payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or Notwithstanding this document, petitioner Gathalian filed with the then Court of
miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as First Instance of La Union an action extra contractu to recover compensatory
temperate damages; 4) P100,000.00 each as exemplary damages and attorney's and moral damages. She alleged in the complaint that her injuries sustained from
fees; and, 5) the costs of the suit. SO ORDERED. the vehicular mishap had left her with a conspicuous white scar measuring 1 by
1/2 inches on the forehead, generating mental suffering and an inferiority
G.R. No. L-56487 October 21, 1991 complex on her part; and that as a result, she had to retire in seclusion and stay
away from her friends. She also alleged that the scar diminished her facial
REYNALDA GATCHALIAN, petitioner, vs. ARSENIO DELIM and the beauty and deprived her of opportunities for employment. She prayed for an
HON. COURT OF APPEALS, respondents. award of: P10,000.00 for loss of employment and other opportunities;
P10,000.00 for the cost of plastic surgery for removal of the scar on her forehead;
At noon time on 11 July 1973, petitioner Reynalda Gatchalian boarded, P30,000.00 for moral damages; and P1,000.00 as attorney's fees.
as a paying passenger, respondent's "Thames" mini bus at a point in San
Eugenio, Aringay, La Union, bound for Bauang, of the same province. On the In defense, respondent averred that the vehicular mishap was due to force
way, while the bus was running along the highway in Barrio Payocpoc, Bauang, majeure, and that petitioner had already been paid and moreover had waived any
Union, "a snapping sound" was suddenly heard at one part of the bus and,
right to institute any action against him (private respondent) and his driver, when wherein they stated that "in consideration of the expenses which said operator
petitioner Gatchalian signed the Joint Affidavit on 14 July 1973. has incurred in properly giving us the proper medical treatment, we hereby
manifest our desire to waive any and all claims against the operator of the Samar
After trial, the trial court dismissed the complaint upon the ground that when Express Transit."
petitioner Gatchalian signed the Joint Affidavit, she relinquished any right of
action (whether criminal or civil) that she may have had against respondent and xxx xxx xxx
the driver of the mini-bus.
Even a cursory examination of the document mentioned above will readily show
On appeal by petitioner, the Court of Appeals reversed the trial court's that appellees did not actually waive their right to claim damages from appellant
conclusion that there had been a valid waiver, but affirmed the dismissal of the for the latter's failure to comply with their contract of carriage. All that said
case by denying petitioner's claim for damages: document proves is that they expressed a "desire" to make the waiver — which
obviously is not the same as making an actual waiver of their right. A waiver of
We are not in accord, therefore, of (sic) the ground of the trial court's dismissal the kind invoked by appellant must be clear and unequivocal (Decision of the
of the complaint, although we conform to the trial court's disposition of the case Supreme Court of Spain of July 8, 1887) — which is not the case of the one
— its dismissal. relied upon in this appeal. (Emphasis supplied)
IN VIEW OF THE FOREGOING considerations, there being no error
committed by the lower court in dismissing the plaintiff-appellant's complaint, If we apply the standard used in Yepes and Susaya, we would have to conclude
the judgment of dismissal is hereby affirmed. Without special pronouncement as that the terms of the Joint Affidavit in the instant case cannot be regarded as a
to costs. waiver cast in "clear and unequivocal" terms. Moreover, the circumstances
SO ORDERED. under which the Joint Affidavit was signed by petitioner Gatchalian need to be
considered. Petitioner testified that she was still reeling from the effects of the
In the present Petition for Review filed in forma pauperis, petitioner assails the vehicular accident, having been in the hospital for only three days, when the
decision of the Court of Appeals and ask this Court to award her actual or purported waiver in the form of the Joint Affidavit was presented to her for
compensatory damages as well as moral damages.We agree with the majority of signing; that while reading the same, she experienced dizziness but that, seeing
the Court of Appeals who held that no valid waiver of her cause of action had the other passengers who had also suffered injuries sign the document, she too
been made by petitioner. The relevant language of the Joint Affidavit may be signed without bothering to read the Joint Affidavit in its entirety. Considering
quoted again: these circumstances there appears substantial doubt whether petitioner
understood fully the import of the Joint Affidavit (prepared by or at the instance
That we are no longer interested to file a complaint, criminal or civil against the of private respondent) she signed and whether she actually intended thereby to
said driver and owner of the said Thames, because it was an accident and the waive any right of action against private respondent.
said driver and owner of the said Thames have gone to the extent of helping us
to be treated upon our injuries. (Emphasis supplied) Finally, because what is involved here is the liability of a common carrier for
injuries sustained by passengers in respect of whose safety a common carrier
A waiver, to be valid and effective, must in the first place be couched in clear must exercise extraordinary diligence, we must construe any such purported
and unequivocal terms which leave no doubt as to the intention of a person to waiver most strictly against the common carrier. For a waiver to be valid and
give up a right or benefit which legally pertains to him. 4 A waiver may not effective, it must not be contrary to law, morals, public policy or good
casually be attributed to a person when the terms thereof do not explicitly and customs. 5 To uphold a supposed waiver of any right to claim damages by an
clearly evidence an intent to abandon a right vested in such person. injured passenger, under circumstances like those exhibited in this case, would
be to dilute and weaken the standard of extraordinary diligence exacted by the
law from common carriers and hence to render that standard
The degree of explicitness which this Court has required in purported waivers is
unenforceable. 6 We believe such a purported waiver is offensive to public
illustrated in Yepes and Susaya v. Samar Express Transit (supra), where the
policy.
Court in reading and rejecting a purported waiver said:

. . . It appears that before their transfer to the Leyte Provincial Hospital, Petitioner Gatchalian also argues that the Court of Appeals, having by majority
appellees were asked to sign as, in fact, they signed the document Exhibit I vote held that there was no enforceable waiver of her right of action, should
have awarded her actual or compensatory and moral damages as a matter of In its dissertation on the phrase "caso fortuito" the Enciclopedia Juridica
course. Española says: 'In legal sense and, consequently, also in relation to contracts, a
"caso fortuito" presents the following essential characteristics: (1) the cause of
We have already noted that a duty to exercise extraordinary diligence in the unforeseen and unexpected occurence, or of the failure of the debtor to
protecting the safety of its passengers is imposed upon a common carrier. 7 In comply with his obligation, must be independent of the human will; (2) it must
case of death or injuries to passengers, a statutory presumption arises that the be impossible to foresee the event which constitutes the "caso fortuito", or if it
common carrier was at fault or had acted negligently "unless it proves that it can be foreseen, it must be impossible to avoid; (3) the occurrence must be such
[had] observed extraordinary diligence as prescribed in Articles 1733 and as to render it impossible for the debtor to fulfill his obligation in a normal
1755." 8 In fact, because of this statutory presumption, it has been held that a manner; and (4) the obligor must be free from any participation in the
court need not even make an express finding of fault or negligence on the part of aggravation of the injury resulting to the creditor.
the common carrier in order to hold it liable. 9 To overcome this presumption,
the common carrier must slow to the court that it had exercised extraordinary Upon the other hand, the record yields affirmative evidence of fault or
diligence to prevent the injuries. 10 The standard of extraordinary diligence negligence on the part of respondent common carrier. In her direct examination,
imposed upon common carriers is considerably more demanding than the petitioner Gatchalian narrated that shortly before the vehicle went off the road
standard of ordinary diligence, i.e., the diligence of a and into a ditch, a "snapping sound" was suddenly heard at one part of the bus.
good paterfamilias established in respect of the ordinary relations between One of the passengers, an old woman, cried out, "What happened?" ("Apay
members of society. A common carrier is bound to carry its passengers addan samet nadadaelen?"). The driver replied, nonchalantly, "That is only
safely" as far as human care and foresight can provide, using the utmost normal" ("Ugali ti makina dayta"). The driver did not stop to check if anything
diligence of a very cautious person, with due regard to all the circumstances". 11 had gone wrong with the bus. Moreover, the driver's reply necessarily indicated
that the same "snapping sound" had been heard in the bus on previous occasions.
Thus, the question which must be addressed is whether or not private respondent This could only mean that the bus had not been checked physically or
has successfully proved that he had exercised extraordinary diligence to prevent mechanically to determine what was causing the "snapping sound" which had
the mishap involving his mini-bus. The records before the Court are bereft of occurred so frequently that the driver had gotten accustomed to it. Such a sound
any evidence showing that respondent had exercised the extraordinary diligence is obviously alien to a motor vehicle in good operating condition, and even a
required by law. Curiously, respondent did not even attempt, during the trial modicum of concern for life and limb of passengers dictated that the bus be
before the court a quo, to prove that he had indeed exercised the requisite checked and repaired. The obvious continued failure of respondent to look after
extraordinary diligence. Respondent did try to exculpate himself from liability the roadworthiness and safety of the bus, coupled with the driver's refusal or
by alleging that the mishap was the result of force majeure. But allegation is not neglect to stop the mini-bus after he had heard once again the "snapping sound"
proof and here again, respondent utterly failed to substantiate his defense offorce and the cry of alarm from one of the passengers, constituted wanton disregard of
majeure. To exempt a common carrier from liability for death or physical the physical safety of the passengers, and hence gross negligence on the part of
injuries to passengers upon the ground of force majeure, the carrier must clearly respondent and his driver.
show not only that the efficient cause of the casualty was entirely independent of
the human will, but also that it was impossible to avoid. Any participation by the We turn to petitioner's claim for damages. The first item in that claim relates to
common carrier in the occurrence of the injury will defeat the defense of force revenue which petitioner said she failed to realize because of the effects of the
majeure. In Servando v. Philippine Steam Navigation Company, 12 the Court vehicular mishap. Petitioner maintains that on the day that the mini-bus went off
summed up the essential characteristics of force majeure by quoting with the road, she was supposed to confer with the district supervisor of public
approval from the Enciclopedia Juridica Española: schools for a substitute teacher's job, a job which she had held off and on as a
"casual employee." The Court of Appeals, however, found that at the time of the
Thus, where fortuitous event or force majeure is the immediate and proximate accident, she was no longer employed in a public school since, being a casual
cause of the loss, the obligor is exempt from liability non-performance. The employee and not a Civil Service eligible, she had been laid off. Her
Partidas, the antecedent of Article 1174 of the Civil Code, defines "caso employment as a substitute teacher was occasional and episodic, contingent
fortuito" as 'an event that takes place by accident and could not have been upon the availability of vacancies for substitute teachers. In view of her
foreseen. Examples of this are destruction of houses, unexpected fire, shipwreck, employment status as such, the Court of Appeals held that she could not be said
violence of robber. to have in fact lost any employment after and by reason of the accident. 13 Such
was the factual finding of the Court of Appeals, a finding entitled to due respect
from this Court. Petitioner Gatchalian has not submitted any basis for
overturning this finding of fact, and she may not be awarded damages on the Petitioner estimated that the cost of having her scar surgically removed was
basis of speculation or conjecture. 14 somewhere between P10,000.00 to P15,000.00. 16 Upon the other hand, Dr. Fe
Tayao Lasam, a witness presented as an expert by petitioner, testified that the
Petitioner's claim for the cost of plastic surgery for removal of the scar on her cost would probably be between P5,000.00 to P10,000.00. 17 In view of this
forehead, is another matter. A person is entitled to the physical integrity of his or testimony, and the fact that a considerable amount of time has lapsed since the
her body; if that integrity is violated or diminished, actual injury is suffered for mishap in 1973 which may be expected to increase not only the cost but also
which actual or compensatory damages are due and assessable. Petitioner very probably the difficulty of removing the scar, we consider that the amount of
Gatchalian is entitled to be placed as nearly as possible in the condition that she P15,000.00 to cover the cost of such plastic surgery is not unreasonable.
was before the mishap. A scar, especially one on the face of the woman,
resulting from the infliction of injury upon her, is a violation of bodily integrity, Turning to petitioner's claim for moral damages, the long-established rule is that
giving raise to a legitimate claim for restoration to her conditio ante. If the scar moral damages may be awarded where gross negligence on the part of the
is relatively small and does not grievously disfigure the victim, the cost of common carrier is shown. 18 Since we have earlier concluded that respondent
surgery may be expected to be correspondingly modest. In Araneta, et al. vs. common carrier and his driver had been grossly negligent in connection with the
Areglado, et al., 15 this Court awarded actual or compensatory damages for, bus mishap which had injured petitioner and other passengers, and recalling the
among other things, the surgical removal of the scar on the face of a young boy aggressive manuevers of respondent, through his wife, to get the victims to
who had been injured in a vehicular collision. The Court there held: waive their right to recover damages even as they were still hospitalized for their
injuries, petitioner must be held entitled to such moral damages. Considering the
We agree with the appellants that the damages awarded by the lower court for extent of pain and anxiety which petitioner must have suffered as a result of her
the injuries suffered by Benjamin Araneta are inadequate. In allowing not more physical injuries including the permanent scar on her forehead, we believe that
than P1,000.00 as compensation for the "permanent deformity and — something the amount of P30,000.00 would be a reasonable award. Petitioner's claim for
like an inferiority complex" as well as for the "pathological condition on the left P1,000.00 as atttorney's fees is in fact even more modest. 19
side of the jaw" caused to said plaintiff, the court below overlooked the clear
evidence on record that to arrest the degenerative process taking place in the WHEREFORE, the Decision of the Court of Appeals dated 24 October 1980, as
mandible and restore the injured boy to a nearly normal condition, surgical well as the decision of the then Court of First Instance of La Union dated 4
intervention was needed, for which the doctor's charges would amount to December 1975 are hereby REVERSED and SET ASIDE.Respondent is hereby
P3,000.00, exclusive of hospitalization fees, expenses and ORDERED to pay petitioner Reynalda Gatchalian the following sums: 1)
medicines. Furthermore, the operation, according to Dr. Diño, would probably P15,000.00 as actual or compensatory damages to cover the cost of plastic
have to be repeated in order to effectuate a complete cure, while removal of the surgery for the removal of the scar on petitioner's forehead; 2) P30,000.00 as
scar on the face obviously demanded plastic surgery. moral damages; and 3) P1,000.00 as attorney's fees, the aggregate amount to
bear interest at the legal rate of 6% per annum counting from the promulgation
xxx xxx x x x The father's failure to submit his son to a plastic of this decision until full payment thereof. Costs against private respondent. SO
operation as soon as possible does not prove that such treatment is not called for. ORDERED.
The damage to the jaw and the existence of the scar in Benjamin Araneta's
faceare physical facts that can not be reasoned out of existence. That the injury G.R. No. 73886 January 31, 1989
should be treated in order to restore him as far as possible to his original
condition is undeniable. The father's delay, or even his negligence, should not be
JOHN C. QUIRANTE and DANTE CRUZ, petitioners,
allowed to prejudice the son who has no control over the parent's action nor vs. THE HONORABLE INTERMEDIATE APPELLATE COURT,
impair his right to a full indemnity. MANUEL C. CASASOLA, and ESTRELLITA C.
CASASOLA, respondents.
. . . Still, taking into account the necessity and cost of corrective measures to
fully repair the damage; the pain suffered by the injured party; his feelings of This appeal by certiorari seeks to set aside the judgment' 1 of the former
inferiority due to consciousness of his present deformity, as well as the Intermediate Appellate Court promulgated on November 6, 1985 in AC-G.R. No.
voluntary character of the injury inflicted; and further considering that a repair, SP-03640, 2 which found the petition for certiorari therein meritorious, thus:
however, skillfully conducted, is never equivalent to the original state, we are of
the opinion that the indemnity granted by the trial court should be increased to a
total of P18,000.00. (Emphasis supplied)
Firstly, there is still pending in the Supreme Court a petition which may or may November 16, 1981, Dr. Casasola died leaving his widow and several children
not ultimately result in the granting to the Isasola (sic) family of the total amount as survivors. 10
of damages given by the respondent Judge. Hence the award of damages
confirmed in the two assailed Orders may be premature. Secondly, assuming On June 18, 1983, herein petitioner Quirante filed a motion in the trial court for
that the grant of damages to the family is eventually ratified, the alleged the confirmation of his attorney's fees. According to him, there was an oral
confirmation of attorney's fees will not and should not adversely affect the non- agreement between him and the late Dr. Casasola with regard to his attorney's
signatories thereto. fees, which agreement was allegedly confirmed in writing by the widow,
Asuncion Vda. de Casasola, and the two daughters of the deceased, namely
WHEREFORE, in view of the grave abuse of discretion (amounting to lack of Mely C. Garcia and Virginia C. Nazareno. Petitioner avers that pursuant to said
jurisdiction) committed by the respondent Judge, We hereby SET ASIDE his agreement, the attorney's fees would be computed as follows:
questioned orders of March 20, 1984 and May 25, 1984. The restraining order
previously issued is made permanent. 3 A. In case of recovery of the P120,000.00 surety bond, the attorney's fees of the
undersigned counsel (Atty. Quirante) shall be P30,000.00.
The challenged decision of respondent court succinctly sets out the factual origin
of this case as follows: B. In case the Honorable Court awards damages in excess of the P120,000.00
bond, it shall be divided equally between the Heirs of I. Casasola, Atty. John C.
... Dr. Indalecio Casasola (father of respondents) had a contract with a building Quirante and Atty. Dante Cruz.
contractor named Norman GUERRERO. The Philippine American General
Insurance Co. Inc. (PHILAMGEN, for short) acted as bondsman for The trial court granted the motion for confirmation in an order dated March 20,
GUERRERO. In view of GUERRERO'S failure to perform his part of the 1984, despite an opposition thereto. It also denied the motion for reconsideration
contract within the period specified, Dr. Indalecio Casasola, thru his counsel, of the order of confirmation in its second order dated May 25, 1984. 11
Atty. John Quirante, sued both GUERRERO and PHILAMGEN before the
Court of first Instance of Manila, now the Regional Trial Court (RTC) of Manila These are the two orders which are assailed in this case.
for damages, with PHILAMGEN filing a cross-claim against GUERRERO for
indemnification. The RTC rendered a decision dated October 16, 1981. ... 4
Well settled is the rule that counsel's claim for attorney's fees may be asserted
either in the very action in which the services in question have been rendered, or
In said decision, the trial court ruled in favor of the plaintiff by rescinding the
in a separate action. If the first alternative is chosen, the Court may pass upon
contract; ordering GUERRERO and PHILAMGEN to pay the plaintiff actual said claim, even if its amount were less than the minimum prescribed by law for
damages in the amount of P129,430.00, moral damages in the amount of
the jurisdiction of said court, upon the theory that the right to recover attorney's
P50,000.00, exemplary damages in the amount of P40,000.00 and attorney's fees
fees is but an incident of the case in which the services of counsel have been
in the amount of P30,000.00; ordering Guerrero alone to pay liquidated damages
rendered ." 12 It also rests on the assumption that the court trying the case is to a
of P300.00 a day from December 15, 1978 to July 16, 1979; and ordering
certain degree already familiar with the nature and extent of the lawyer's
PHILAMGEN to pay the plaintiff the amount of the surety bond equivalent to services. The rule against multiplicity of suits will in effect be subserved. 13
P120,000.00. 5 A motion for reconsideration filed by PHILAMGEN was denied
by the trial court on November 4, 1982. 6
What is being claimed here as attorney's fees by petitioners is, however,
different from attorney's fees as an item of damages provided for under Article
Not satisfied with the decision of the trial court, PHILAMGEN filed a notice of
2208 of the Civil Code, wherein the award is made in favor of the litigant, not of
appeal but the same was not given due course because it was allegedly filed out his counsel, and the litigant, not his counsel, is the judgment creditor who may
of time. The trial court thereafter issued a writ of execution. 7 enforce the judgment for attorney's fees by execution.14 Here, the petitioner's
claims are based on an alleged contract for professional services, with them as
A petition was filed in AC-G.R. No. 00202 with the Intermediate Appellate the creditors and the private respondents as the debtors.
Court for the quashal of the writ of execution and to compel the trial court to
give due course to the appeal. The petition was dismissed on May 4, 1983 8 so In filing the motion for confirmation of attorney's fees, petitioners chose to
the case was elevated to this Court in G.R. No. 64334. 9 In the meantime, on assert their claims in the same action. This is also a proper remedy under our
jurisprudence. Nevertheless, we agree with the respondent court that the
confirmation of attorney's fees is premature. As it correctly pointed out, the We, therefore, take exception to and reject that portion of the decision of the
petition for review on certiorari filed by PHILAMGEN in this Court (G.R. No. respondent court which holds that the alleged confirmation to attorney's fees
64834) "may or may not ultimately result in the granting to the Isasola (sic) should not adversely affect the non-signatories thereto, since it is also premised
family of the total amount of damages" awarded by the trial court. This on the eventual grant of damages to the Casasola family, hence the same
especially true in the light of subsequent developments in G.R. No. 64334. In a objection of prematurity obtains and such a holding may be pre-emptive of
decision promulgated on May 21, 1987, the Court rendered judgment setting factual and evidentiary matters that may be presented for consideration by the
aside the decision of May 4, 1983 of the Intermediate Appellate Court in AC- trial court. WHEREFORE, with the foregoing observation, the decision of the
G.R. No. 00202 and ordering the respondent Regional Trial Court of Manila to respondent court subject of the present recourse is hereby AFFIRMED. SO
certify the appeal of PHILAMGEN from said trial court's decision in Civil Case ORDERED.
No. 122920 to the Court of Appeal. Said decision of the Court became final and
executory on June 25, 1987.

Since the main case from which the petitioner's claims for their fees may arise
has not yet become final, the determination of the propriety of said fees and the
amount thereof should be held in abeyance. This procedure gains added validity
in the light of the rule that the remedy for recovering attorney's fees as an
incident of the main action may be availed of only when something is due to the
client. Thus, it was ruled that:

... an attorney's fee cannot be determined until after the main litigation has been
decided and the subject of recovery is at the disposition of the court. The issue
over attorney's fee only arises when something has been recovered from which
the fee is to be paid. 15

It is further observed that the supposed contract alleged by petitioners as the


basis for their fees provides that the recovery of the amounts claimed is subject
to certain contingencies. It is subject to the condition that the fee shall be
P30,000.00 in case of recovery of the P120,000.00 surety bond, plus an
additional amount in case the award is in excess of said P120,000.00 bond, on
the sharing basis hereinbefore stated.

With regard to the effect of the alleged confirmation of the attorney's fees by
some of the heirs of the deceased. We are of the considered view that the orderly
administration of justice dictates that such issue be likewise determined by the
court a quo inasmuch as it also necessarily involves the same contingencies in
determining the propriety and assessing the extent of recovery of attorney's fees
by both petitioners herein. The court below will be in a better position, after the
entire case shall have been adjudicated, inclusive of any liability of
PHILAMGEN and the respective participations of the heirs of Dr. Casasola in
the award, to determine with evidentiary support such matters like the basis for
the entitlement in the fees of petitioner Dante Cruz and as to whether the
agreement allegedly entered into with the late Dr. Casasola would be binding on
all his heirs, as contended by petitioner Quirante.
.
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