Petitioner Vs Vs Respondent: Second Division

SECOND DIVISION
[G.R. No. 171636. April 7, 2009.]
NORMAN A. GAID , petitioner, vs . PEOPLE OF THE PHILIPPINES ,

respondent.
DECISION
TINGA , J : p
Before the Court is a petition for review on certiorari 1 assailing the 12 July 2005
Decision 2 of the Court of Appeals and its subsequent Resolution 3 denying petitioner's
motion for reconsideration. ScAIaT
Petitioner Norman A. Gaid was charged with the crime of reckless imprudence
resulting in homicide in an information which reads as follow:
That on or about 12:00 high noon of October 25, 2001, infront of the
Laguindingan National High School, Poblacion, Laguindingan, Misamis Oriental,
Philippines and within the jurisdiction of this Honorable Court, the said accused
mentioned above while driving a passenger's jeepney color white bearing plate
no. KVG-771 owned by barangay captain Levy Etom has no precautionary
measure to preempt the accident, did then and there willfully, unlawfully and
feloniously ran [sic] over Michael Dayata resulting of [sic] his untimely death as
pronounced by the attending physician of Northern Mindanao Medical Center
Hospital, Cagayan de Oro City.
CONTRARY TO LAW. 4
Petitioner entered a not guilty plea. Thereafter, trial ensued.

The antecedent facts are undisputed.
At around 12:00 noon on 25 October 2001, petitioner was driving his passenger
jeepney along a two-lane road where the Laguindingan National High School is located
toward the direction of Moog in Misamis Oriental. His jeepney was lled to seating
capacity. 5 At the time several students were coming out of the school premises. 6
Meanwhile, a fourteen-year-old student, Michael Dayata (Dayata), was seen by
eyewitness Artman Bongolto (Bongolto) sitting near a store on the left side of the road.
From where he was at the left side of the road, Dayata raised his left hand to ag down
petitioner's jeepney 7 which was traveling on the right lane of the road. 8 However,
neither did petitioner nor the conductor, Dennis Mellalos (Mellalos), saw anybody
flagging down the jeepney to ride at that point. 9
The next thing Bongalto saw, Dayata's feet was pinned to the rear wheel of the
jeepney, after which, he laid at on the ground behind the jeepney. 1 0 Another
prosecution witness, Usaffe Actub (Actub), who was also situated on the left side of
the street but directly in front of the school gate, heard "a strong impact coming from
the jeep sounding as if the driver forced to accelerate in order to hurdle an obstacle." 1 1
Dayata was then seen lying on the ground 1 2 and caught in between the rear tires. 1 3
Petitioner felt that the left rear tire of the jeepney had bounced and the vehicle tilted to
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the right side. 1 4
Mellalos heard a shout that a boy was run over, prompting him to jump off the
jeepney to help the victim. Petitioner stopped and saw Mellalos carrying the body of the
victim. 1 5 Mellalos loaded the victim on a motorcycle and brought him to the hospital.
Dayata was rst brought to the Laguindingan Health Center, but it was closed. Mellalos
then proceeded to the El Salvador Hospital. Upon advice of its doctors, however,
Dayata was brought to the Northern Mindanao Medical Center where he was
pronounced dead on arrival. 1 6
Dr. Tammy Uy issued an autopsy report stating cranio-cerebral injuries as the
cause of death. 1 7 She testi ed that the head injuries of Dayata could have been caused
by having run over by the jeepney. 1 8
The Municipal Circuit Trial Court (MCTC) of Laguindingan 1 9 found petitioner
guilty beyond reasonable doubt of the crime charged. The lower court held petitioner
negligent in his driving considering that the victim was dragged to a distance of 5.70
meters from the point of impact. He was also scored for "not stopping his vehicle after
noticing that the jeepney's left rear tire jolted causing the vehicle to tilt towards the
right." 2 0 On appeal, the Regional Trial Court (RTC) 2 1 affirmed in toto the decision of the
MCTC.
The Court of Appeals a rmed the trial court's judgment with modi cation in that
it found petitioner guilty only of simple negligence resulting in homicide.
The Court of Appeals exonerated petitioner from the charge of reckless
imprudence resulting to homicide on the ground that he was not driving recklessly at
the time of the accident. However, the appellate court still found him to be negligent
when he failed "to promptly stop his vehicle to check what caused the sudden jotting of
its rear tire." 2 2
In its 6 February 2006 Resolution, the Court of Appeals denied petitioner's
motion for reconsideration. 2 3
Hence, the instant petition.
Petitioner submits that the Court of Appeals erred in nding that "there is ( sic)
absolutely lack of precaution on the part of the petitioner when he continued even after
he had noticed that the left rear tire and the jeep tilted to its right side." 2 4 Petitioner
stressed that he, in fact, stopped his jeep when its left rear tire bounced and upon
hearing that somebody had been ran over. ADTCaI
Moreover, petitioner asserts that the Court of Appeals committed a grave abuse
of discretion in convicting him of the offense of simple negligence resulting in
homicide. Assuming arguendo that he failed to promptly stop his vehicle, petitioner
maintains that no prudent man placed in the same situation could have foreseen the
vehicular accident or could have stopped his vehicle in time when its left rear tire
bounced due to the following reasons: (1) the victim was only a trespasser; (2)
petitioner's attention was focused on the road and the students outside the school's
gate; and (3) the jeepney was fully loaded with passengers and cargoes and it was
impossible for the petitioner to promptly stop his vehicle. 2 5
The O ce of the Solicitor-General (OSG) maintained that petitioner was
negligent when he continued to run towards the direction of Moog, Laguindingan,
dragging the victim a few meters from the point of impact, despite hearing that a child
had been run over. 2 6
The presence or absence of negligence on the part of petitioner is determined by
the operative events leading to the death of Dayata which actually comprised of two
phases or stages. The rst stage began when Dayata agged down the jeepney while
positioned on the left side of the road and ended when he was run over by the jeepney.
The second stage covered the span between the moment immediately after the victim
was run over and the point when petitioner put the jeepney to a halt.
During the first stage, petitioner was not shown to be negligent.
Reckless imprudence consists of voluntarily doing or failing to do, without
malice, an act from which material damage results by reason of an inexcusable lack of
precaution on the part of the person performing or failing to perform such act. 2 7
In Manzanares v. People , 2 8 this Court convicted petitioner of the crime of
reckless imprudence resulting in multiple homicide and serious physical injuries when
he was found driving the Isuzu truck very fast before it smashed into a jeepney. 2 9
Likewise, in Pangonorom v. People , 3 0 a public utility driver, who was driving very fast,
failed to slow down and hit a swerving car. He was found negligent by this Court.
In the instant case, petitioner was driving slowly at the time of the accident, as
testi ed to by two eyewitnesses. Prosecution witness Actub a rmed this fact on
cross-examination, thus:
ATTY. MACUA:
(to the witness)
Q Mr. Witness, when the passenger jeepney passed by the gate of the
Laguindingan National High School, is it running slowly, am I correct?
A Yes, he was running slowly. 3 1
The slow pace of the jeepney was seconded by Mellalos:

Q You testi ed that you heard somebody outside from the vehicle shouting
that a boy was ran over, am I correct?
A Yes, Sir.
Q Now, before you heard that shouting, did you observe any motion from the
vehicle?
A The jeep was moving slowly and I noticed that there was something that
[sic] the jeep a little bit bounced up as if a hump that's the time I heard a
shout from outside. 3 2
Petitioner stated that he was driving at no more than 15 kilometers per hour. 3 3
It appears from the evidence Dayata came from the left side of the street.
Petitioner, who was driving the jeepney on the right lane, did not see the victim ag him
down. He also failed to see him go near the jeepney at the left side. Understandably,
petitioner was focused on the road ahead. In Dayata's haste to board the jeep which
was then running, his feet somehow got pinned to the left rear tire, as narrated by
Bongolto. Actub only saw Dayata after he heard a strong impact coming from the jeep.
With the foregoing facts, petitioner can not be held liable during the rst stage.
Speci cally, he cannot be held liable for reckless imprudence resulting in homicide, as
found by the trial court. The proximate cause of the accident and the death of the victim
was de nitely his own negligence in trying to catch up with the moving jeepney to get a
ride.
In the instant case, petitioner had exercised extreme precaution as he drove
slowly upon reaching the vicinity of the school. He cannot be faulted for not having seen
the victim who came from behind on the left side. TCIEcH
However, the Court of Appeals found petitioner guilty of simple negligence

resulting in homicide for failing to stop driving at the time when he noticed the
bouncing of his vehicle. Verily, the appellate court was referring to the second stage of
the incident.
Negligence has been de ned as the failure to observe for the protection of the
interests of another person that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury. 3 4
The elements of simple negligence: are (1) that there is lack of precaution on the
part of the offender; and (2) that the damage impending to be caused is not immediate
or the danger is not clearly manifest. 3 5
The standard test in determining whether a person is negligent in doing an act
whereby injury or damage results to the person or property of another is this: could a
prudent man, in the position of the person to whom negligence is attributed, foresee
harm to the person injured as a reasonable consequence of the course actually
pursued? If so, the law imposes a duty on the actor to refrain from that course or to
take precautions to guard against its mischievous results, and the failure to do so
constitutes negligence. Reasonable foresight of harm, followed by the ignoring of the
admonition born of this provision, is always necessary before negligence can be held to
exist. 3 6
In Philippine National Construction Corporation v. Court of Appeals , 3 7 the
petitioner was the franchisee that operates and maintains the toll facilities in the North
and South Luzon Toll Expressways. It failed to exercise the requisite diligence in
maintaining the NLEX safe for motorists. The lighted cans and lane dividers on the
highway were removed even as attened sugarcanes lay scattered on the ground. The
highway was still wet from the juice and sap of the attened sugarcanes. The petitioner
should have foreseen that the wet condition of the highway would endanger motorists
passing by at night or in the wee hours of the morning. 3 8 Consequently, it was held
liable for damages.
In an American case, Hernandez v. Lukas , 3 9 a motorist traveling within the speed
limit and did all was possible to avoid striking a child who was then six years old only.
The place of the incident was a neighborhood where children were playing in the
parkways on prior occasions. The court ruled that it must be still proven that the driver
did not exercise due care. The evidence showed that the driver was proceeding in lawful
manner within the speed limit when the child ran into the street and was struck by the
driver's vehicle. Clearly, this was an emergency situation thrust upon the driver too
suddenly to avoid.
In this case, the courts below zeroed in on the fact that petitioner did not stop
the jeepney when he felt the bouncing of his vehicle, a circumstance which the appellate
court equates with negligence. Petitioner contends that he did not immediately stop
because he did not see anybody go near his vehicle at the time of the incident. 4 0
Assuming arguendo that petitioner had been negligent, it must be shown that his
negligence was the proximate cause of the accident. Proximate cause is de ned as
that which, in the natural and continuous sequence, unbroken by any e cient,
intervening cause, produces the injury, and without which the result would not have
occurred. 4 1 In order to establish a motorist's liability for the negligent operation of a
vehicle, it must be shown that there was a direct causal connection between such
negligence and the injuries or damages complained of. Thus, negligence that is not a
substantial contributing factor in the causation of the accident is not the proximate
cause of an injury. 4 2
The head injuries sustained by Dayata at the point of impact proved to be the
immediate cause of his death, as indicated in the post-mortem ndings. 4 3 His skull
was crushed as a result of the accident. Had petitioner immediately stopped the
jeepney, it would still not have saved the life of the victim as the injuries he suffered
were fatal.
The evidence on record do not show that the jeepney dragged the victim after he
was hit and run over by the jeepney. Quite the contrary, the evidence discloses that the
victim was not dragged at all. In fact, it is the other way around. Bongolto narrated that
after the impact, he saw Dayata left behind the jeepney. 4 4 Actub saw Dayata in a prone
position and bleeding within seconds after impact. 4 5 Right after the impact, Mellalos
immediately jumped out of the jeepney and saw the victim lying on the ground. 4 6 The
distance of 5.70 meters is the length of space between the spot where the victim fell to
the ground and the spot where the jeepney stopped as observed by the trial judge
during the ocular inspection at the scene of the accident. 4 7
Moreover, mere suspicions and speculations that the victim could have lived had
petitioner stopped can never be the basis of a conviction in a criminal case. 4 8 The
Court must be satis ed that the guilt of the accused had been proven beyond
reasonable doubt. 4 9 Conviction must rest on nothing less than a moral certainty of the
guilt of the accused. The overriding consideration is not whether the court doubts the
innocence of the accused but whether it entertains doubt as to his guilt. 5 0aIcSED
Clearly then, the prosecution was not able to establish that the proximate cause
of the victim's death was petitioner's alleged negligence, if at all, even during the
second stage of the incident.
If at all again, petitioner's failure to render assistance to the victim would
constitute abandonment of one's victim punishable under Article 275 of the Revised
Penal Code. However, the omission is not covered by the information. Thus, to hold
petitioner criminally liable under the provision would be tantamount to a denial of due
process.
Therefore, petitioner must be acquitted at least on reasonable doubt. The award
of damages must also be deleted pursuant to Article 2179 of the Civil Code which
states that when the plaintiff's own negligence was the immediate and proximate cause
of his injury, he cannot recover damages.
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals
dated 12 July 2005 is REVERSED and SET ASIDE. Petitioner Norman A. Gaid is
ACQUITTED of the crime of Simple Negligence Resulting in Homicide as found by the
Court of Appeals and of the charge of Reckless Imprudence Resulting in Homicide in
Criminal Case No. 1937 of the MCTC of Laguindingan, Misamis Oriental.
SO ORDERED.
Quisumbing, Carpio-Morales and Peralta, JJ., concur.
Velasco, Jr., J., pls. see dissent.
Separate Opinions
VELASCO, JR. , J., dissenting :
With all due respect to my esteemed colleague, Mr. Justice Tinga, who has, as
usual, prepared a well-written and comprehensive ponencia, I regret my inability to
share the view that petitioner Norman A. Gaid should be acquitted of the crime of
Simple Negligence Resulting in Homicide.
Simple negligence was shown on the part of petitioner at the second stage of the
operative events leading to the death of Dayata. The second stage constituted the time
between the moment immediately after the victim was run over and the point when
petitioner stopped the jeepney.
Article 365 of the Revised Penal Code (RPC) de nes "simple negligence" as one
that "consists in the lack of precaution displayed in those cases in which the damage
impending to be caused is not immediate nor the danger clearly manifest."
The elements of simple imprudence are (1) that there is lack of precaution on the
part of the offender; and (2) that the damage impending to be caused is not immediate
or the danger is not clearly manifest. 1 As early as in People v. Vistan , 2 the Court
de ned simple negligence, penalized under what is now Art. 365 of the RPC, as "a mere
lack of prevision in a situation where either the threatened harm is not immediate or the
danger not openly visible." Elsewise put, the gravamen of the offense of simple
negligence is the failure to exercise the diligence necessitated or called for by the
situation which was not immediately life-destructive but which culminated, in the
present case, in the death of a human being.
On October 25, 2001, on or about 12:00 high noon, the victim Dayata was waiting
for a ride home in front of the gate of Laguindingan National High School, Misamis
Oriental when he was run over by a passenger utility jeep, driven by petitioner. Dayata
was dragged to a distance of 5.7 meters from the point of impact before petitioner
stopped the jeep which was running at an estimated speed of 15 kilometers per hour.
Petitioner did not get off to attend to the victim; only the conductor did. The conductor
loaded the victim on a motorcycle, and brought the victim to the hospital. The victim
was declared dead on arrival. Petitioner claimed that he did not see the victim prior to
the accident and was unaware of how it happened because the passenger jeep was
fully loaded.
The evidence shows that petitioner continued on his route even after sensing that
he had run over a "hard object". At this point, petitioner should have displayed
precaution by stopping on his tracks. Unfortunately, this was not done. Instead, even
after he heard the shout "adunay bata naligsan!" which means "a child has been run
over," petitioner nonetheless continued to run towards the direction of Moog,
Laguindingan, dragging the victim a few meters from the point of impact. His lack of
care was, thus, perceivable.
Indeed, petitioner could not exonerate himself from his negligent act. He failed
the test of being a prudent man. The test for determining whether or not a person is
negligent in doing an act that results in damage or injury to the person or property of
another is: Would a prudent man, in the position of the person to whom
negligence is attributed, foresee harm to the person injured as a reasonable
consequence of the course about to be pursued? If so, the law imposes the duty
on the doer to refrain from that course or take precaution against its mischievous
results, and the failure to do so constitutes negligence. Reasonable foresight of harm,
followed by ignoring the admonition borne of this prevision, is the constitutive fact in
negligence. 3 CcHDSA
Even the Death Certificate of the victim and the testimonies of Dr. Remedios L. Uy
and Dr. Tammy L. Uy of the National Bureau of Investigation proved that the victim died
of injuries caused by the force or impact and found extensive/serious fractures and
disfigurement as described in the Autopsy Report. 4
Dr. Tammy further testi ed that based on the type, multiplicity, and severity of
the injuries to the victim's head, he believed that the head was run over and
subsequently, the body was dragged also based on the multiplicity of the abrasions. 5
The degree of precaution and diligence required of an individual in any given case
so as to avoid being charged with recklessness varies with the degree of the danger. If
the danger of doing harm to a person or to another's property, on account of a certain
line of conduct, is great, the individual who chooses to follow that particular course of
conduct is compelled to be very careful in order to prevent or avoid the damage or
injury. On the other hand, if the danger is small, very little care is required. It is, thus,
possible that there are in nite degrees of precaution or diligence, from the most slight
and instantaneous thought or the transitory glance of care to the most vigilant effort.
The duty of the person to employ more or less degree of care in such cases will depend
upon the circumstances of each particular case. 6
An example of simple imprudence is a case where the driver of a cart, passing
along the street of a city at the speed prescribed by the ordinances and leading his
team from the side by a strap attached to the bridle or head of one of the horses, on
turning a corner and in a moment of distraction, does not see a child asleep in the
gutter on the side of the team opposite to him, by reason whereof the child is run over
by the cart and killed. The act cannot be denominated as purely accidental, because, if
the cart driver had been paying attention to his duty, he would have seen the child and
very likely would have been able to avoid the accident. Nor can it be called gross or
reckless negligence, because he was not able to foresee the extremely unusual
occurrence of a child being asleep in the gutter. 7
In the fairly similar case of People v. De los Santos , 8 where petitioner Glenn De
los Santos run over several Philippine National Police (PNP) trainees doing their
jogging, killing 11 of them and injuring another 10, this Court set aside the Regional Trial
Court's conviction of Glenn for the complex crime of multiple murder, multiple
frustrated murder and multiple attempted murder, with the use of motor vehicle as the
qualifying circumstance. We held that what happened in the wee hours of the morning
with overcast skies and the PNP trainees who were hard to discern due to their dark
attire and running at the wrong side of the road was an accident. Glenn was, however,
found to be negligent in failing to apply the brakes, or to swerve his vehicle to the left or
to a safe place the moment he heard and felt the rst bumping thuds. Had he done so,
many trainees would have been spared.
It is true that in the instant case, it could be argued that victim Dayata might have
died instantaneously upon being run over by the left rear tire of petitioner's jeepney.
Nonetheless, that is already academic at this point. Had petitioner promptly applied the
brakes when he heard the shout that he ran over someone and felt the bump, could the
victim had survived? Alas, that cannot be answered as the victim was dragged for
approximately 5.7 meters. If indeed petitioner's jeepney was running at only around 15
kilometers per hour, it would be easy to stop the jeepney within a distance of ve (5)
feet. Had he instantly applied the brakes and put the jeepney to a sudden stop, hence,
the life of Dayata could have been saved. Worse, the lack of care and precaution of
petitioner was shown in his utter lack of concern towards the victim. It was only his
conductor who brought the victim on a motorcycle to the hospital when petitioner was
duty-bound to do so.
Clear to my mind is that petitioner did not exercise the necessary care expected
of him given the circumstances. What the Court said in De los Santos is apropos that "
[A] man must use common sense, and exercise due re ection in all his acts; it is his
duty to be cautious, careful, and prudent, if not from instinct, then through fear of
incurring punishment. He is responsible for such results as anyone might foresee and
for acts which no one would have performed except through culpable abandon." 9
In the instant case, like in De los Santos, petitioner's offense is in not applying the
brakes when he heard the shout and felt the bump that he ran over something. These
are not denied by petitioner. Petitioner, thus, failed to show lack of precaution given the
circumstances.
Therefore, I vote to a rm the nding of the Court of Appeals that petitioner is
guilty beyond reasonable doubt of the lesser offense of Simple Negligence Resulting in
Homicide under Art. 365 of the RPC, with the corresponding penalty of four (4) months
imprisonment, including the awards of civil indemnity, moral and actual damages, plus
costs.
FROM ALL THE FOREGOING REASONS, I, therefore, vote for the outright
DISMISSAL of the instant petition for lack of merit. cDCaTH
Footnotes
1. Rollo, pp. 27-43.
2. Id. at 8-21; Penned by Associate Justice Myrna Dimaranan-Vidal, and concurred in by
Associate Justices Teresita Dy-Liacco Flores and Edgardo A. Camello.
3. Id. at 23-24.
4. CA rollo, p. 84.
5. Vide t.s.n., Records, p. 209.

6. Id. at 264.
7. Records, p. 69.
8. Vide: TSN, Records, p. 209.
9. Id. at 251 and 265.
10. Id. at 229.
11. Id. at 235.
12. Id.

THIRD DIVISION
[G.R. No. 161803. February 4, 2008.]
DY TEBAN TRADING, INC. , petitioner, vs . JOSE CHING AND/OR

LIBERTY FOREST, INC. and CRESILITO M. LIMBAGA , respondents.
DECISION
REYES, R.T., J : p
THE vehicular collision resulting in damages and injuries in this case could have
been avoided if the stalled prime mover with trailer were parked properly and equipped
with an early warning device. It is high time We sounded the call for strict enforcement
of the law and regulation on tra c and vehicle registration. Panahon na para
mahigpit na ipatupad ang batas at regulasyon sa trapiko at pagpapatala ng
sasakyan.
Before Us is a petition for review on certiorari of the Decision 1 of the Court of
Appeals (CA) modifying that 2 of the Regional Trial Court (RTC) in Butuan City nding
private respondents Liberty Forest, Inc. and Cresilito Limbaga liable to petitioner Dy
Teban Trading, Inc. for damages.
Facts
On July 4, 1995, at around 4:45 a.m., Rogelio Ortiz, with helper Romeo Catamora,
was driving a Nissan van owned by petitioner Dy Teban Trading, Inc. along the National
Highway in Barangay Sumilihon, Butuan City, going to Surigao City. They were delivering
commercial ice to nearby barangays and municipalities. A Joana Paula passenger bus
was cruising on the opposite lane towards the van. In between the two vehicles was a
parked prime mover with a trailer, owned by private respondent Liberty Forest, Inc. 3
The night before, at around 10:00 p.m., the prime mover with trailer suffered a
tire blowout. The driver, private respondent Cresilito Limbaga, parked the prime mover
askew occupying a substantial portion of the national highway, on the lane of the
passenger bus. He parked the prime mover with trailer at the shoulder of the road with
the left wheels still on the cemented highway and the right wheels on the sand and
gravel shoulder of the highway. 4 The prime mover was not equipped with triangular,
collapsible re ectorized plates, the early warning device required under Letter of
Instruction No. 229. As substitute, Limbaga placed a banana trunk with leaves on the
front and the rear portion of the prime mover to warn incoming motorists. It is alleged
that Limbaga likewise placed kerosene lighted tin cans on the front and rear of the
trailer. 5
To avoid hitting the parked prime mover occupying its lane, the incoming
passenger bus swerved to the right, onto the lane of the approaching Nissan van. Ortiz
saw two bright and glaring headlights and the approaching passenger bus. He pumped
his break slowly, swerved to the left to avoid the oncoming bus but the van hit the front
of the stationary prime mover. The passenger bus hit the rear of the prime mover. 6
Ortiz and Catamora only suffered minor injuries. The Nissan van, however,
became inoperable as a result of the incident. After the collision, SPO4 Teo lo Pame
conducted an investigation and submitted a police tra c incident investigation report.
7
On October 31, 1995, petitioner Nissan van owner led a complaint for damages
8 against private respondents prime mover owner and driver with the RTC in Butuan
City. The Joana Paula passenger bus was not impleaded as defendant in the complaint.
RTC Disposition
On August 7, 2001, the RTC rendered a decision in favor of petitioner Dy Teban
Trading, Inc. with a fallo reading:
WHEREFORE, judgment is hereby rendered directing, ordaining and
ordering:
a) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga pay,

jointly and solidarily, plaintiff Dy Teban Trading, Inc. the amounts of
P279,832.00 as actual and compensatory damages, P30,000.00 as
attorney's fees and P5,000.00 as expenses of litigation;
b) That all money claims of plaintiff Rogelio C. Ortiz are dismissed;
c) That defendant Jose Ching is absolved from any civil liability or the
case against him dismissed;
d) That the counterclaim of all the defendants is dismissed; and

e) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga to
pay, jointly and solidarily, the costs.
SO ORDERED. 9
The RTC held that the proximate cause of the three-way vehicular collision was
improper parking of the prime mover on the national highway and the absence of an
early warning device on the vehicle, thus:
The court nds that the proximate cause of the incidents is the
negligence and carelessness attributable to the defendants. When the trailer
being pulled by the prime mover suffered two (2) at tires at Sumilihon, the
prime mover and trailer were parked haphazardly, as the right tires of the prime
mover were the only ones on the sand and gravel shoulder of the highway while
the left tires and all the tires of the trailer were on the cemented pavement of the
highway, occupying almost the whole of the right lane on the direction the prime
mover and trailer were traveling. The statement of Limbaga that he could not
park the prime mover and trailer deeper into the sand and gravel shoulder of the
highway to his right because there were banana plants is contradicted by the
picture marked Exhibit "F." The picture shows that there was ample space on the
shoulder. If defendant Limbaga was careful and prudent enough, he should
have the prime mover and trailer traveled more distance forward so that the
bodies of the prime mover and trailer would be far more on the shoulder rather
than on the cemented highway when they were parked. . . . The court has some
doubts on the statement of witness-driver Limbaga that there were banana
trunks with leaves and lighted tin cans with crude oil placed 3 strides in front of
the prime mover and behind the trailer because the testimonies of witnesses
Rogelio C. Ortiz, driver of the ice van, Romeo D. Catamora, helper of the ice van,
and Police Tra c Investigator SPO3 Teo lo M. Pame show that there were no
banana trunks with leaves and lighted tin cans at the scene of the incident. But
even assuming that there were banana trunks with leaves but they were placed
close to the prime mover and trailer as they were placed 3 strides away which to
the mind of the court is equivalent approximately to 3 meters and with this
distance, approaching vehicles would have no su cient time and space to
make a complete stop, especially if the vehicles are heavy and loaded. If there
were lighted tin cans, it was not explained by the defendants why the driver,
especially driver witness Ortiz, did not see them.
xxx xxx xxx
Defendant Liberty Forest, Inc. did not exercise the diligence of a good
father of a family in managing and running its business. The evidence on record
shows that it failed to provide its prime mover and trailer with the required "early
warning devices" with re ectors and it did not keep proper maintenance and
condition of the prime mover and the trailer. The circumstances show that the
trailer were provided with wornout tires and with only one (1) piece of spare tire.
The pictures marked Exhibit "3" and "4" show that two (2) at tires suffered by
the trailer and these two (2) tires were attached to one of the two (2) I-beams or
axles attached to the rear of the trailer which axle is very near but behind the
other axle and with the location of the 2 I-beams, it would have the other I-beam
that would have suffered the at tires as it has to bear the brunt of weight of the
D-8 bulldozer. The bulldozer was not loaded directly above the two (2) I-beams
as 2 I-beams, as a pair, were attached at the far rear end of the trailer.
xxx xxx xxx
However, defendant Jose Ching should be absolved of any liability as there

is no showing that he is the manager or CEO of defendant Liberty Forest, Inc.
Although in the answer, it is admitted that he is an o cer of the defendant
corporation, but it is not clari ed what kind of position he is holding, as he could
be an o cer as one of the members of the Board of Directors or a cashier and
treasurer of the corporation. Witness Limbaga in his testimony mentioned a
certain Boy Ching as the Manager but it was never clari ed whether or not Boy
Ching and defendant Jose Ching is one and the same person. 1 0
Private respondents appealed to the CA.

CA Disposition
On August 28, 2003, the CA reversed the RTC decision, disposing as follows:
WHEREFORE , premises considered, the decision dated August 7, 2001
of the Regional Trial Court, Branch 2, Butuan City in Civil Case No. 4360 is
hereby PARTLY MODIFIED by absolving the defendants-appellants/appellees
of any liability to plaintiffs-appellants/appellees by reason of the incident on
July 4, 1995.
The dismissal of the case against Jose Ching, the counterclaim of
defendants-appellants/appellees and the money claim of Rogelio Ortiz
STANDS .
SO ORDERED . 1 1
In partly reversing or partly modifying the RTC decision, the CA held that the
proximate cause of the vehicular collision was the failure of the Nissan van to give way
or yield to the right of way of the passenger bus, thus:
It was stated that the Joana Paula bus in trying to avoid a head-on
collision with the truck, sideswept the parked trailer loaded with bulldozer.

Evidently, the driver of the Joana Paula bus was aware of the presence
on its lane of the parked trailer with bulldozer. For this reason, it proceeded to
occupy what was left of its lane and part of the opposite lane. The truck
occupying the opposite lane failed to give way or yield the right of way to the
oncoming bus by proceeding with the same speed. The two vehicles were, in
effect, trying to beat each other in occupying a single lane. The bus was the rst
to occupy the said lane but upon realizing that the truck refused to give way or
yield the right of way, the bus, as a precaution, geared to its right where the
trailer was parked. Unfortunately, the bus miscalculated its distance from the
parked trailer and its rear right side hit the protruding blade of the bulldozer then
on the top of the parked trailer. The impact of the collision on its right rear side
with the blade of the bulldozer threw the bus further to the opposite lane,
landing its rear portion on the shoulder of the opposite lane.
xxx xxx xxx

Facts of the case reveal that when Ortiz, the driver of the truck, failed to
give the Joana Paula bus the space on the road it needed, the latter vehicle
scraped its rear right side on the protruded bulldozer blade and the impact threw
the bus directly on the path of the oncoming truck. This made plaintiffs-
appellants/appellees conclude that the Joana Paula bus occupied its lane
which forced Ortiz, the driver of the truck, to swerve to its left and ram the front
of the parked trailer.
xxx xxx xxx
The trailer was parked because its two (2) rear-left tires were blown out.
With a bulldozer on top of the trailer and two (2) busted tires, it would be
dangerous and quite impossible for the trailer to further park on the graveled
shoulder of the road. To do so will cause the at car to tilt and may cause the
bulldozer to fall from where it was mounted. In fact, it appeared that the driver
of the trailer tried its best to park on the graveled shoulder since the right-front
tires were on the graveled shoulder of the road.
The lower court erred in stating that the Joana Paula bus swerved to the
left of the truck because it did not see the parked trailer due to lack of warning
sign of danger of any kind that can be seen from a distance. The damage
suffered by the Joana Paula bus belied this assessment. As stated before, the
Joana Paula bus, with the intention of passing rst which it did, rst
approached the space beside the parked trailer, veered too close to the parked
trailer thereby hitting its rear right side on the protruding bulldozer blade. Since
the damage was on the rear right most of the bus, it was clearly on the space
which was wide enough for a single passing vehicle but not su cient for two
(2) passing vehicles. The bus was thrown right to the path of the truck by the
impact of the collision of its rear right side with the bulldozer blade. 1 2
The CA disagreed with the RTC that the prime mover did not have an early
warning device. The appellate court accepted the claim of private respondent that
Limbaga placed kerosene lighted tin cans on the front and rear of the trailer which, in
Baliwag Transit, Inc. v. Court of Appeals , 1 3 may act as substitute early warning device.
The CA stated:
Likewise, it was incorrect for the lower court to state that there was no
warning sign of danger of any kind, most probably referring to the absence of
the triangular re ectorized plates. The police sketch clearly indicated the stack
of banana leaves placed at the rear of the parked trailer. The trailer's driver
testi ed that they placed kerosene lighted tin can at the back of the parked
trailer.
A pair of triangular re ectorized plates is not the only early warning
device allowed by law. The Supreme Court (in Baliwag Transit, Inc. v. Court of
Appeals) held that:
". . . Col. dela Cruz and Romano testi ed that they did not see any
early warning device at the scene of the accident. They were referring to
the triangular re ectorized plates in red and yellow issued by the Land
Transportation O ce. However, the evidence shows that Recontique and
Ecala placed a kerosene lamp or torch at the edge of the road, near the rear
portion of the truck to serve as an early warning device. This substantially
complies with Section 34 (g) of the Land Transportation and Tra c Code .
..
Baliwag's argument that the kerosene lamp or torch does not

substantially comply with the law is untenable. The aforequoted law
clearly allows the use not only of an early warning device of the triangular
re ectorized plates' variety but also parking lights or ares visible one
hundred meters away. . . . ."
This Court holds that the defendants-appellants/appellees were not
negligent in parking the trailer on the scene of the accident. It would have been
different if there was only one at tire and defendant-appellant/appellee
Limbaga failed to change the same and left immediately.
As such, defendants-appellants/appellees are not liable for the damages
suffered by plaintiffs-appellants/appellees. Whatever damage plaintiffs-
appellants/appellees suffered, they alone must bear them. 1 4
Issues
Petitioner raises two issues 1 5 for Our consideration, to wit:
I.
THE HONORABLE COURT OF APPEALS, WITHOUT ANY AVAILABLE CONCRETE
EVIDENCE, ERRONEOUSLY DETERMINED THAT THERE WERE EARLY WARNING
DEVICES PLACED IN FRONT OF THE DEFENDANT-APPELLANTS/APPELLEES'
TRUCK AND FLAT CAR TO WARN PLAINTIFF-APPELLANT/APPELLEE ROGELIO
ORTIZ OF THEIR PRESENCE.
II.
WITH DUE RESPECT, IT IS HIGH TIME TO ENFORCE THE LAW ON EARLY
WARNING DEVICES IN THE PUBLIC INTEREST.
Our Ruling
The petition is meritorious.
The meat of the petition is whether or not the prime mover is liable for the
damages suffered by the Nissan van. The RTC ruled in the a rmative holding that the
proximate cause of the vehicular collision was the negligence of Limbaga in parking the
prime mover on the national highway without an early warning device on the vehicle. The
CA reversed the RTC decision, holding that the proximate cause of the collision was the
negligence of Ortiz in not yielding to the right of way of the passenger bus.

Article 2176 of the Civil Code provides that whoever by act or omission causes
damage to another, there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing contractual relation between
the parties, is called a quasi-delict. To sustain a claim based on quasi-delict, the
following requisites must concur: (a) damage suffered by plaintiff; (b) fault or
negligence of defendant; and (c) connection of cause and effect between the fault or
negligence of defendant and the damage incurred by plaintiff. 1 6
There is no dispute that the Nissan van suffered damage. That is borne by the
records and conceded by the parties. The outstanding issues are negligence and
proximate cause. Tersely put, the twin issues are: (a) whether or not prime mover driver
Limbaga was negligent in parking the vehicle; and (b) whether or not his negligence was
the proximate cause of the damage to the Nissan van.
Limbaga was negligent in parking
the prime mover on the national
highway; he failed to prevent or
minimize the risk to oncoming
motorists .
Negligence is de ned as the failure to observe for the protection of the interests
of another person that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury. 1 7 The
Supreme Court stated the test of negligence in the landmark case Picart v. Smith 1 8 as
follows:
The test by which to determine the existence or negligence in a particular
case may be stated as follows: Did the defendant in doing the alleged negligent
act use that reasonable care and caution which an ordinary person would have
used in the same situation? If not, then he is guilty of negligence. The law here
in effect adopts the standard supposed to be supplied by the imaginary conduct
of the discreet paterfamilias of the Roman law. The existence of negligence in a
given case is not determined by reference to the personal judgment of the actor
in the situation before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and prudence and
determines liability by that. (Underscoring supplied)
The test of negligence is objective. We measure the act or omission of the
tortfeasor with that of an ordinary reasonable person in the same situation. The test, as
applied to this case, is whether Limbaga, in parking the prime mover, used that
reasonable care and caution which an ordinary reasonable person would have used in
the same situation.
We nd that Limbaga was utterly negligent in parking the prime mover askew on
the right side of the national highway. The vehicle occupied a substantial portion of the
national road on the lane of the passenger bus. It was parked at the shoulder of the
road with its left wheels still on the cemented highway and the right wheels on the sand
and gravel shoulder of the highway. It is common sense that the skewed parking of the
prime mover on the national road posed a serious risk to oncoming motorists. It was
incumbent upon Limbaga to take some measures to prevent that risk, or at least
minimize it.
We are unable to agree with the CA conclusion "it would have been dangerous
and quite impossible to further park the prime mover on the graveled shoulder of the
road because the prime mover may tilt and the bulldozer may fall off." The photographs
taken after the incident show that it could have been possible for Limbaga to park the
prime mover completely on the shoulder of the national road without risk to oncoming
motorists. We agree with the RTC observation on this point, thus:
. . . The statement of Limbaga that he could not park the prime mover
and trailer deeper into the sand and gravel shoulder of the highway to his right
because there were banana plants is contradicted by the picture marked Exhibit
"F." The picture shows that there was ample space on the shoulder. If defendant
Limbaga was careful and prudent enough, he should have the prime mover and
trailer traveled more distance forward so that the bodies of the prime mover and
trailer would be far more on the shoulder rather than on the cemented highway
when they were parked. Although at the time of the incident, it was about 4:45 in
the morning and it was drizzling but there is showing that it was pitch dark that
whoever travels along the highway must be extra careful. If the Joana Paula
bus swerved to the lane on which the "Nissan" ice van was properly traveling, as
prescribed by Tra c Rules and Regulations, it is because the driver of the bus
did not see at a distance the parked prime mover and trailer on the bus' proper
lane because there was no warning signs of danger of any kind that can be
seen from a distance. 1 9
Limbaga also failed to take proper steps to minimize the risk posed by the
improperly parked prime mover. He did not immediately inform his employer, private
respondent Liberty Forest, Inc., that the prime mover suffered two tire blowouts and
that he could not have them xed because he had only one spare tire. Instead of calling
for help, Limbaga took it upon himself to simply place banana leaves on the front and
rear of the prime mover to serve as warning to oncoming motorists. Worse, Limbaga
slept on the prime mover instead of standing guard beside the vehicle. By his own
account, Limbaga was sleeping on the prime mover at the time of the collision and that
he was only awakened by the impact of the Nissan van and the passenger bus on the
prime mover. 2 0
Limbaga also admitted on cross-examination that it was his rst time to drive
the prime mover with trailer loaded with a D-8 caterpillar bulldozer. 2 1 We nd that
private respondent Liberty Forest, Inc. was utterly negligent in allowing a novice driver,
like Limbaga, to operate a vehicle, such as a truck loaded with a bulldozer, which
required highly specialized driving skills. Respondent employer clearly failed to properly
supervise Limbaga in driving the prime mover.
The RTC noted that private respondent Liberty Forest, Inc. also failed to keep the
prime mover in proper condition at the time of the collision. The prime mover had worn
out tires. It was only equipped with one spare tire. It was for this reason that Limbaga
was unable to change the two blown out tires because he had only one spare. The
bulldozer was not even loaded properly on the prime mover, which caused the tire
blowouts.
All told, We agree with the RTC that private respondent Limbaga was negligent in
parking the prime mover on the national highway. Private respondent Liberty Forest,
Inc. was also negligent in failing to supervise Limbaga and in ensuring that the prime
mover was in proper condition.
The case of Baliwag Transit, Inc. v.
Court of Appeals is inapplicable;
Limbaga did not put lighted kerosene
tin cans on the front and rear of the
prime mover .
Anent the absence of an early warning device on the prime mover, the CA erred in
accepting the bare testimony of Limbaga that he placed kerosene lighted tin cans on
the front and rear of the prime mover. The evidence on records belies such claim. The
CA reliance on Baliwag Transit, Inc. v. Court of Appeals 2 2 as authority for the
proposition that kerosene lighted tin cans may act as substitute early warning device is
misplaced.
First , the tra c incident report did not mention any lighted tin cans on the prime
mover or within the immediate vicinity of the accident. Only banana leaves were placed
on the prime mover. The report reads:
VIII — RESULT OF INVESTIGATION: A Joana Paula Bus, with Body No.
7788, with Plate No. LVA-137, driven by one Temestocles Relova v. Antero , of
legal age, married and a resident of San Roque, Kitcharao, Agusan del Norte,
while traveling along the National Highway, coming from the east going to the
west direction, as it moves along the way and upon reaching Brgy. Sumilihon,
Butuan City to evade bumping to the approaching Nissan Ice Van with Plate No.
PNT-247, driven by one Rogelio Cortez y Ceneza. As the result, the Joana Paula
Bus accidentally busideswept (sic) to the parked Prime Mover with Trailer
loaded with Bulldozer without early warning device , instead placing only dry
banana leaves three (3) meters at the rear portion of the Trailer, while failure to
place at the front portion, and the said vehicle occupied the whole lane. As the
result, the Joana Paula Bus hit to the left edge blade of the Bulldozer. Thus,
causing the said bus swept to the narrow shouldering, removing the rear four (4)
wheels including the differential and injuring the above-stated twelve (12)
passengers and damaged to the right side fender above the rear wheel. Thus,
causing damage on it. While the Nissan Ice Van in evading, accidentally
swerved to the left lane and accidentally bumped to the front bumper of the
parked Prime Mover with Trailer loaded with Bulldozer. Thus, causing heavy
damage to said Nissan Ice Van including the cargoes of the said van. 2 3
Second , SPO4 Pame, who investigated the collision, testi ed 2 4 that only banana
leaves were placed on the front and rear of the prime mover. He did not see any lighted
tin cans in the immediate vicinity of the collision.
Third , the claim of Limbaga that he placed lighted tin cans on the front and rear
of the prime mover belatedly surfaced only during his direct examination. No allegation
to this effect was made by private respondents in their Answer to the complaint for
damages. Petitioner's counsel promptly objected to the testimony of Limbaga, thus:
ATTY. ROSALES:
Q. Now you mentioned about placing some word signs in front and at the
rear of the prime mover with trailer, will you please describe to us what this
word signs are?
A. We placed a piece of cloth on tin cans and lled them with crude oil.
And these tin cans were lighted and they are like torches. These two lights
or torches were placed in front and at the rear side of the prime mover with
trailer. After each torch, we placed banana trunk . The banana trunk is
placed between the two (2) torches and the prime mover, both on the rear
and on the front portion of the prime mover.
Q. How far was the lighted tin cans with wick placed in front of the prime
mover.

ATTY. ASIS:
At this point, we will be objecting to questions particularly referring to the
alleged tin cans as some of the warning-sign devices, considering that
there is no allegation to that effect in the answer of the defendants. The
answer was just limited to the numbers 4 & 5 of the answer. And, therefore,
if we follow the rule of the binding effect of an allegation in the complaint,
then the party will not be allowed to introduce evidence to attack jointly or
rather the same, paragraph 5 states, warning device consisting of 3
banana trunks, banana items and leaves were led. He can be cross-
examined in the point, Your Honor.
COURT:
Q. Put that on record that as far as this tin cans are concerned, the plaintiffs
are interposing continuing objections. But the Court will allow the question.
25
We thus agree with the RTC that Limbaga did not place lighted tin cans on the
front and rear of the prime mover. We give more credence to the tra c incident report
and the testimony of SPO4 Pame that only banana leaves were placed on the vehicle.
Baliwag Transit, Inc. v. Court of Appeals 2 6 thus finds no application to the case at bar.
The skewed parking of the prime
mover was the proximate cause of
the collision .
Proximate cause is de ned as that cause, which, in natural and continuous
sequence, unbroken by any e cient intervening cause, produces the injury, and without
which the result would not have occurred. More comprehensively, proximate cause is
that cause acting rst and producing the injury, either immediately or by setting other
events in motion, all constituting a natural and continuous chain of events, each having a
close causal connection with its immediate predecessor, the nal event in the chain
immediately effecting the injury as natural and probable result of the cause which rst
acted, under such circumstances that the person responsible for the rst event should,
as an ordinarily prudent and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might probably result
therefrom. 2 7
There is no exact mathematical formula to determine proximate cause. It is
based upon mixed considerations of logic, common sense, policy and precedent. 2 8
Plaintiff must, however, establish a su cient link between the act or omission and the
damage or injury. That link must not be remote or far-fetched; otherwise, no liability will
attach. The damage or injury must be a natural and probable result of the act or
omission. In the precedent-setting Vda. de Bataclan v. Medina , 2 9 this Court discussed
the necessary link that must be established between the act or omission and the
damage or injury, viz.:
It may be that ordinarily, when a passenger bus overturns, and pins down
a passenger, merely causing him physical injuries, if through some event,
unexpected and extraordinary, the overturned bus is set on re, say, by lightning,
or if some highwaymen after looting the vehicle sets it on re, and the
passenger is burned to death, one might still contend that the proximate cause
of his death was the re and not the overturning of the vehicle. But in the
present case and under the circumstances obtaining in the same, we do not
hesitate to hold that the proximate cause of the death of Bataclan was the
overturning of the bus, this for the reason that when the vehicle turned not only
on its side but completely on its back, the leaking of the gasoline from the tank
was not unnatural or unexpected; that the coming of the men with a lighted
torch was in response to the call for help, made not only by the passengers, but
most probably, by the driver and the conductor themselves, and that because it
was very dark (about 2:30 in the morning), the rescuers had to carry a light with
them; and coming as they did from a rural area where lanterns and ashlights
were not available, they had to use a torch, the most handy and available; and
what was more natural than that said rescuers should innocently approach the
overturned vehicle to extend the aid and effect the rescue requested from them.
In other words, the coming of the men with the torch was to be expected and
was natural sequence of the overturning of the bus, the trapping of some of its
passengers' bus, the trapping of some of its passengers and the call for outside
help.
The ruling in Bataclan has been repeatedly cited in subsequent cases as authority
for the proposition that the damage or injury must be a natural or probable result of the
act or omission. Here, We agree with the RTC that the damage caused to the Nissan van
was a natural and probable result of the improper parking of the prime mover with
trailer. As discussed, the skewed parking of the prime mover posed a serious risk to
oncoming motorists. Limbaga failed to prevent or minimize that risk. The skewed
parking of the prime mover triggered the series of events that led to the collision,
particularly the swerving of the passenger bus and the Nissan van.
Private respondents Liberty Forest, Inc. and Limbaga are liable for all damages
that resulted from the skewed parking of the prime mover. Their liability includes those
damages resulting from precautionary measures taken by other motorist in trying to
avoid collision with the parked prime mover. As We see it, the passenger bus swerved
to the right, onto the lane of the Nissan van, to avoid colliding with the improperly
parked prime mover. The driver of the Nissan van, Ortiz, reacted swiftly by swerving to
the left, onto the lane of the passenger bus, hitting the parked prime mover. Ortiz
obviously would not have swerved if not for the passenger bus abruptly occupying his
van's lane. The passenger bus, in turn, would not have swerved to the lane of the Nissan
van if not for the prime mover improperly parked on its lane. The skewed parking is the
proximate cause of the damage to the Nissan van.
I n Phoenix Construction, Inc. v. Intermediate Appellate Court, 3 0 this Court held
that a similar vehicular collision was caused by the skewed parking of a dump truck on
the national road, thus:
The conclusion we draw from the factual circumstances outlined above
is that private respondent Dionisio was negligent the night of the accident. He
was hurrying home that night and driving faster than he should have been.
Worse, he extinguished his headlights at or near the intersection of General
Lacuna and General Santos Streets and thus did not see the dump truck that
was parked askew and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the
Intermediate Appellate Court that the legal and proximate cause of the accident
and of Dionisio's injuries was the wrongful or negligent manner in which the
dump truck was parked — in other words, the negligence of petitioner Carbonel.
That there was a reasonable relationship between petitioner Carbonel's
negligence on the one hand and the accident and respondent's injuries on the
other hand, is quite clear. Put in a slightly different manner, the collision of
Dionisio's car with the dump truck was a natural and foreseeable consequence
of the truck driver's negligence.
xxx xxx xxx
We believe, secondly, that the truck driver's negligence far from being a
"passive and static condition" was rather an indispensable and e cient cause.
The collision between the dump truck and the private respondent's car would in
all probability not have occurred had the dump truck not been parked askew
without any warning lights or re ector devices. The improper parking of the
dump truck created an unreasonable risk of injury for anyone driving down
General Lacuna Street and for having so created this risk, the truck driver must
be held responsible. In our view, Dionisio's negligence, although later in point of
time than the truck driver's negligence and, therefore, closer to the accident, was
not an e cient intervening or independent cause. What the Petitioner describes
as an "intervening cause" was no more than a foreseeable consequence of the
risk created by the negligent manner in which the truck driver had parked the
dump truck. In other words, the petitioner truck driver owed a duty to private
respondent Dionisio and others similarly situated not to impose upon them the
very risk the truck driver had created. Dionisio's negligence was not of an
independent and overpowering nature as to cut, as it were, the chain of
causation in fact between the improper parking of the dump truck and the
accident, nor to sever the juris vinculum of liability. . . . (Underscoring supplied)
We cannot rule on the proportionate
or contributory liability of the
passenger bus, if any, because it
was not a party to the case; joint
tortfeasors are solidarily liable .
The CA also faults the passenger bus for the vehicular collision. The appellate
court noted that the passenger bus was "aware" of the presence of the prime mover on
its lane, but it still proceeded to occupy the lane of the Nissan van. The passenger bus
also miscalculated its distance from the prime mover when it hit the vehicle.
We cannot de nitively rule on the proportionate or contributory liability of the
Joana Paula passenger bus vis-à-vis the prime mover because it was not a party to the
complaint for damages. Due process dictates that the passenger bus must be given an
opportunity to present its own version of events before it can be held liable. Any
contributory or proportionate liability of the passenger bus must be litigated in a
separate action, barring any defense of prescription or laches. Insofar as petitioner is
concerned, the proximate cause of the collision was the improper parking of the prime
mover. It was the improper parking of the prime mover which set in motion the series
of events that led to the vehicular collision.
Even granting that the passenger bus was at fault, it's fault will not necessarily
absolve private respondents from liability. If at fault, the passenger bus will be a joint
tortfeasor along with private respondents. The liability of joint tortfeasors is joint and
solidary. This means that petitioner may hold either of them liable for damages from
the collision. In Philippine National Construction Corporation v. Court of Appeals , 3 1 this
Court held:
According to the great weight of authority, where the concurrent or
successive negligent acts or omission of two or more persons, although acting
independently of each other, are, in combination, the direct and proximate cause
of a single injury to a third person and it is impossible to determine in what
proportion each contributed to the injury, either is responsible for the whole
injury, even though his act alone might not have caused the entire injury, or the
same damage might have resulted from the acts of the other tort-feasor . . . .
In Far Eastern Shipping Company v. Court of Appeals , the Court declared that the
liability of joint tortfeasors is joint and solidary, to wit:
It may be said, as a general rule, that negligence in order to render a
person liable need not be the sole cause of an injury. It is su cient that his
negligence, concurring with one or more e cient causes other than plaintiff's, is
the proximate cause of the injury. Accordingly, where several causes combine to
produce injuries, a person is not relieved from liability because he is responsible
for only one of them, it being su cient that the negligence of the person
charged with injury is an efficient cause without which the injury would not have
resulted to as great an extent, and that such cause is not attributable to the
person injured. It is no defense to one of the concurrent tortfeasors that the
injury would not have resulted from his negligence alone, without the negligence
or wrongful acts of the other concurrent tortfeasors. Where several causes
producing an injury are concurrent and each is an e cient cause without which
the injury would not have happened, the injury may be attributed to all or any of
the causes and recovery may be had against any or all of the responsible
persons although under the circumstances of the case, it may appear that one
of them was more culpable, and that the duty owed by them to the injured
person was not the same. No actor's negligence ceases to be a proximate cause
merely because it does not exceed the negligence of other actors. Each
wrongdoer is responsible for the entire result and is liable as though his acts
were the sole cause of the injury.
There is no contribution between joint tortfeasors whose liability is
solidary since both of them are liable for the total damage. Where the
concurrent or successive negligent acts or omissions of two or more persons,
although acting independently, are in combination with the direct and proximate
cause of a single injury to a third person, it is impossible to determine in what
proportion each contributed to the injury and either of them is responsible for
the whole injury. Where their concurring negligence resulted in injury or damage
to a third party, they become joint tortfeasors and are solidarily liable for the
resulting damage under Article 2194 of the Civil Code. (Underscoring supplied)
All told, all the elements of quasi delict have been proven by clear and convincing
evidence. The CA erred in absolving private respondents from liability for the vehicular
collision.
Final Note
It is lamentable that the vehicular collision in this case could have been easily
avoided by following basic tra c rules and regulations and road safety standards. In
hindsight, private respondent Limbaga could have prevented the three-way vehicular
collision if he had properly parked the prime mover on the shoulder of the national road.
The improper parking of vehicles, most especially along the national highways, poses a
serious and unnecessary risk to the lives and limbs of other motorists and passengers.
Drivers owe a duty of care to follow basic tra c rules and regulations and to observe
road safety standards. They owe that duty not only for their own safety, but also for
that of other motorists. We can prevent most vehicular accidents by simply following
basic traffic rules and regulations.
We also note a failure of implementation of basic safety standards, particularly
the law on early warning devices. This applies even more to trucks and big vehicles,
which are prone to mechanical breakdown on the national highway. The law, as crafted,
requires vehicles to be equipped with triangular re ectorized plates. 3 2 Vehicles
without the required early warning devices are ineligible for registration. 3 3 Vehicle
owners may also be arrested and fined for non-compliance with the law. 3 4
The Land Transportation O ce (LTO) owes a duty to the public to ensure that all
vehicles on the road meet basic and minimum safety features, including that of early
warning devices. It is most unfortunate that We still see dilapidated and rundown
vehicles on the road with substandard safety features. These vehicles not only pose a
hazard to the safety of their occupants but that of other motorists. The prime mover
truck in this case should not have been granted registration because it failed to comply
with the minimum safety features required for vehicles on the road.
It is, indeed, time for tra c enforcement agencies and the LTO to strictly enforce
all pertinent laws and regulations within their mandate.
WHEREFORE, the petition is GRANTED. The Court of Appeals decision dated
August 28, 2003 is hereby SET ASIDE. The RTC decision dated August 7, 2001 is
REINSTATED IN FULL.
SO ORDERED.
Ynares-Santiago, Austria-Martinez, Corona * and Nachura, JJ., concur.
Footnotes
1. Rollo, pp. 39-50-A.

2. Id. at 68-108.
3. Id. at 72-73.
4. Id. at 89-90.
5. Id. at 90.
6. Id. at 72-74.
7. Id. at 45-46.
8. Id. at 52-57.
9. Id. at 107-108.
10. Id. at 101-107.
11. Id. at 50.
12. Id. at 46-48.
13. G.R. No. 116110, May 15, 1996, 256 SCRA 746.
14. Rollo, pp. 48-50.

15. Id. at 26, 29.
16. Philippine Bank of Commerce v. Court of Appeals, G.R. No. 97626, March 14, 1997, 269
SCRA 695, 702-703.
17. Corliss v. Manila Railroad Company, G.R. No. L-21291, March 28, 1969, 27 SCRA 674,
EN BANC
[G.R. No. 13505. February 4, 1919.]
GEO. W. DAYWALT , plaintiff-appellant, vs . LA CORPORACION DE LOS

PADRES AGUSTINOS RECOLETOS, ET AL. , defendants-appellees.
C.C. Cohn and Thos. D. Aitken, for appellant.

Crossfield & O'Brien, for appellee.
SYLLABUS
1.CONTRACTS; DAMAGES FOR BREACH; LIABILITY OF THIRD PARTY. —

Whatever may be the character of the liability, if any, which a stranger to a contract may
incur by advising or assisting one of the parties to evade performance, he cannot
become more extensively liable in damages for the nonperformance of the contract
than the party in whose behalf he inter meddles.
2.ID.; ID.; MEASURE OF DAMAGES FOR BREACH OF CONTRACT. — The damages
recoverable upon breach of contract are, primarily, the ordinary, natural and in a sense
the necessary damage resulting from the breach. Other damages, known as special
damages, are recoverable where it appears that the particular conditions which made
such damages a probable consequence of the breach were known to the delinquent
party at the time the contract was made. This proposition must be understood with the
quali cation that, if the damages are in the legal sells remote or speculative, knowledge
of the special conditions which render such damages possible will not make them
recoverable. Special damages of this character cannot be recovered unless made the
subject of special stipulation.
3.ID; ID.; ID.; DAMAGES FOR BREACH OF CONTRACT FOR SALE OF LAND. — The
damages ordinarily recoverable against a vendor for failure to deliver land which he has
contracted to deliver is the value of the use and occupation of the land for the tune
during which it is wrongfully withheld.
DECISION
STREET , J : p
In the year 1902, Teodorica Endencia, an unmarried woman, resident in the

Province of Mindoro, executed a contract whereby she obligated herself to convey to
Geo. W. Daywalt,. a tract of land situated in the barrio of Mangarin, municipality of
Bulalacao, now San Jose, in said province. It was agreed that a deed should be
executed as soon as the title to the land should be perfected by proceedings in the
Court of Land Registration and a Torrens certi cate should be procured therefor in the
name of Teodorica Endencia. A decree recognizing the right of Teodorica as owner was
entered in said court in August 1906, but the Torrens certi cate was not issued until
later. The parties, however, met immediately upon the entering of this decree and made
a new contract with a view to carrying their original agreement into effect. This new
contract was executed in the form of a deed of conveyance and bears date of August
16, 1906. The stipulated price was xed at P4,000, and the area of the land enclosed in
the boundaries defined in the contract was stated to be 452 hectares and a fraction.
The second contract was not immediately carried into effect for the reason that
the Torrens certi cate was not yet obtainable and in fact said certi cate was not
issued until the period of performance contemplated in the contract had expired.
Accordingly, upon October 3, 1908, the parties entered into still another agreement,
superseding the old, by which Teodorica Endencia agreed, upon receiving the Torrens
title to the land in question, to deliver the same to the Hongkong and Shanghai Bank in
Manila, to be forwarded to the Crocker National Bank in San Francisco, where it was to
be delivered to the plaintiff upon payment of a balance of P3,100.
The Torrens certi cate was in time issued to Teodorica Endencia, but in the
course of the proceedings relative to the registration of the land, it was found by official
survey that the area of the tract inclosed in the boundaries stated in the contract was
about 1,248 hectares instead of 452 hectares as stated in the contract. In view of this
development Teodorica Endencia became reluctant to transfer the whole tract to the
purchaser, asserting that she never intended to sell so large an amount of land and that
she had been misinformed as to its area.
This attitude of hers led to litigation in which Daywalt nally succeeded, upon
appeal to the Supreme Court, in obtaining a decree for speci c performance; and
Teodorica Endencia was ordered to convey the entire tract of land to Daywalt pursuant
to the contract of October 3, 1908, which contract was declared to be in full force and
effect. This decree appears to have become nally effective in the early part of the year
1914.1
The defendant, La Corporacion de los Padres Recoletos, is a religious
corporation, with its domicile in the city of Manila. Said corporation was formerly the
owner of a large tract of land, known as the San Jose Estate, on the island of Mindoro,
which was sold to the Government of the Philippine Islands in the year 1909. The same
corporation was at this time also the owner of another estate on the same island
immediately adjacent to the land which Teoderica Endencia had sold to Geo. W.
Daywalt; and for many years the Recoletos Fathers had maintained large herds of cattle
on the farms referred to. Their representative, charged with the management of these
farms, was father Isidoro Sanz, himself a member of the order. Father Sanz had long
been well acquainted with Teodorica Endencia and exerted over her an in uence and
ascendancy due to his religious character as well as to the personal friendship which
existed between them. Teodorica appears to be a woman of little personal force, easily
subject to in uence, and upon all the important matters of business was accustomed
to seek, and was given, the advice of Father Sanz and other members of his order with
whom she came in contact.
Father Sanz was fully aware of the existence of the contract of 1902 by which
Teodorica Endencia agreed to sell her land to the plaintiff as well as of the later
important developments connected with the history of that contract and the contract
substituted successively for it; and in particular Father Sanz, as well as other members
of the defendant corporation, knew of the existence of the contract of October 3, 1908,
which, as we have already seen, nally xed the rights of the parties to the property in
question. When the Torrens certi cate was nally issued in 1909 in favor of Teodorica
Endencia, she delivered it for safekeeping to the defendant corporation, and it was then
taken to Manila where it remained in the custody and under the control of P. Juan
Labarga the procurador and chief o cial of the defendant corporation, until the delivery
thereof to the plaintiff was made compulsory by reason of the decree of the Supreme
Court in 1914.
When the defendant corporation sold the San Jose Estate, it was necessary to
bring the cattle off of that property; and, in the rst half of 1909, some 2,368 head were
removed to the estate of the corporation immediately adjacent to the property which
the plaintiff had purchased from Teodorica Endencia. As Teodorica still retained
possession of said property Father Sanz entered into an arrangement with her whereby
large numbers of cattle belonging to the defendant corporation were pastured upon
said land during a period extending from June 1, 1909, to May 1, 1914.
Under the rst cause stated in the complaint in the present action the plaintiff
seeks to recover from the defendant corporation the sum of P24,000, as damages for
the use and occupation of the land in question by reason of the pasturing of cattle
thereon during the period stated. The trial court came to the conclusion that the
defendant corporation was liable for damages by reason of the use and occupation of
the premises in the manner stated; and xed the amount to be recovered at P2,497.
The plaintiff appealed and has assigned error to this part of the judgment of the court
below, insisting that damages should have been awarded in a much larger sum and at
least to the full extent of P24,000, the amount claimed in the complaint.
As the defendant did not appeal, the propriety of allowing damages for the use
and occupation of the land to the extent of P2,497, the mount awarded, is not now in
question; and the only thing here to be considered, in connection with this branch of the
case, is whether the damages allowed under this head should be increased. The trial
court lightly ignored the fact that the defendant corporation had paid Teodorica
Endencia for use and occupation of the same land during the period in question at the
rate of P425 per annum, inasmuch as the nal decree of this court in the action for
speci c performance is conclusive against her right, and as the defendant corporation
had notice of the rights of the plaintiff under his contract of purchase, it can not be
permitted that the corporation should escape liability in this action by proving payment
of rent to a person other than the true owner.
With reference to the rate at which compensation should be estimated the trial
court came to the following conclusion:
"As to the rate of the compensation, the plaintiff contends that the
defendant corporation maintained at least one thousand head of cattle on the
land and that the pasturage was of the value of forty centavos per head monthly,
or P4,800 annually, for the whole tract. The court can not accept this view. It is
rather improbable that 1,248 hectares of wild Mindoro land would furnish
su cient pasturage for one thousand head of cattle during the entire year, and,
considering the locality, the rate of forty centavos per head monthly seems too
high. The evidence shows that after having recovered possession of the land the
plaintiff rented it to the defendant corporation for fty centavos per hectare
annually, the tenant to pay the taxes on the land, and this appears to be a
reasonable rent. There is no reason to suppose that the land was worth more for
grazing purposes during the period from 1909 to 1913, than it was at the later
period. Upon this basis the plaintiff is entitled to damages in the sum of P2,497,
and is under no obligation to reimburse the defendants for the land taxes paid by
either of them during the period the land was occupied by the defendant
corporation. It may be mentioned in this connection that the Lontok tract
adjoining the land in question and containing over three thousand hectares
appears to have been leased for only P1,000 a year, plus the taxes."
From this it will be seen that the trial court estimated the rental value of the land
for grazing purposes at 50 centavos per hectare per annum, and roughly adopted the
period of four years as the time for which compensation at that rate should be made.
As the court had already found that the defendant was liable for these damages from
June, 1, 1909, to May 1, 1914, or a period of four years and eleven months, there seems
some ground for the contention made in the appellant's rst assignment of error that
the court's computation was erroneous, even accepting the rule upon which the
damages were assessed, as it is manifest that at the rate of 50 centavos per hectare
per annum, the damages for four years and eleven months would be P3,090.
Notwithstanding this circumstance, we are of the opinion that the damages
assessed are su cient to compensate the plaintiff for the use and occupation of the
land during the whole time it was used. There is evidence in the record strongly tending
to show that the wrongful use of the land by the defendant was not continuous
throughout the year but was con ned mostly to the season when the forage obtainable
on the land of the defendant corporation was not su cient to maintain its cattle, for
which reason it became necessary to allow them to go over to pasture on the land in
question; and it is not clear that the whole of the land was used for pasturage at any
time. Considerations of this character probably led the trial court to adopt four years as
roughly being the period during which compensation should be allowed. But whether
this was advertently done or not, we see no su cient reason, in the uncertainty of the
record with reference to the number of the cattle grazed and the period when the land
was used, for substituting our guess for the estimate made by the trial court.
In the second cause of action stated in the complaint the plaintiff seeks to
recover from the defendant corporation the sum of P500,000, as damages, on the
ground that said corporation, for its own sel sh purposes, unlawfully induced
Teodorica Endencia to refrain from the performance of her contract for the sale of the
land in question and to withhold delivery to the plaintiff of the Torrens title, and further,
maliciously and without reasonable cause, maintained her in her defense to the action
of speci c performance which was nally decided in favor of the plaintiff in this court.
The cause of action here stated is based on a liability derived from the wrongful
interference of the defendant in the performance of the contract between the plaintiff
and Teodorica Endencia; and the large damages laid in the complaint were, according
to the proof submitted by the plaintiff, incurred as a result of a combination of
circumstances of the following nature: In 1911, it appears, the plaintiff, as the owner of
the land which he had bought from Teodorica Endencia entered into a contract (Exhibit
C) with S.B. Wake eld, of San Francisco, for the sale and disposal of said lands to a
sugar growing and milling enterprise, the successful launching of which depended on
the ability of Daywalt to get possession of the land and the Torrens certi cate of title.
In order to accomplish this end, the plaintiff returned to the Philippine Islands,
communicated his arrangement to the defendant, and made repeated efforts to secure
the registered title for delivery in compliance with said agreement with Wake eld.
Teodorica Endencia seems to have yielded her consent to the consummation of her
contract, but the Torrens title was then in the possession of Padre Juan Labarga in
Manila, who refused to deliver the document. Teodorica also was in the end prevailed
upon to stand out against the performance of her contract with the plaintiff with the
result that the plaintiff was kept out of possession until the Wake eld project for the
establishment of a large sugar growing and milling enterprise fell through. In the light of
what has happened in recent years in the sugar industry, we feel justi ed in saying that
the project above referred to, if carried into effect, must inevitably have proved a great
success.
The determination of the issue presented in this second cause of action requires
a consideration of two points. The rst is whether a person who is not a party to a
contract for the sale of land makes himself liable for damages to the vendee, beyond
the value of the use and occupation, by colluding with the vendor and maintaining him in
the effort to resist an action for speci c performance. The second is whether the
damages which the plaintiff seeks to recover under this head are too remote and
speculative to be the subject of recovery.
As preliminary to a consideration of the rst of these questions, we deem it well
to dispose of the contention that the members of the defendant corporation, in
advising and prompting Teodorica Endencia not to comply with the contract of sale,
were actuated by improper and malicious motives. The trial court found that this
contention was not sustained, observing that while it was true that the circumstances
pointed to an entire sympathy on the part of the defendant corporation with the efforts
of Teodorica Endencia to defeat the plaintiff's claim to the land, the fact that its
o cials may have advised her not to carry the contract into effect would not constitute
actionable interference with such contract. It may be added that when one considers
the hardship that the ultimate performance of that contract entailed on the vendor, and
the doubt in which the issue was involved — to the extent that the decision of the Court
of the First Instance was unfavorable to the plaintiff and the Supreme Court itself was
divided — the attitude of the defendant corporation, as exhibited in the conduct of its
procurador, Juan Labarga, and other members of the order of the Recollect Fathers, is
not di cult to understand. To our mind a fair conclusion on this feature of the case is
that father Juan Labarga and his associates believed in good faith that the contract
could not be enforced and that Teodorica would be wronged if it should be carried into
effect. Any advice or assistance which they may have given was, therefore, prompted by
no mean or improper motive. It is not, in our opinion, to be denied that Teodorica would
have surrendered the documents of title and given possession of the land but for the
in uence and promptings of members of the defendant corporation. But we do not
credit the idea that they were in any degree in uenced to the giving of such advice by
the desire to secure to themselves the paltry privilege of grazing their cattle upon the
land in question to the prejudice of the just rights of the plaintiff.
The attorney for the plaintiff maintains that, by interfering in the performance of
the contract in question and obstructing the plaintiff in his efforts to secure the
certi cate of title to the land, the defendant corporation made itself a co-participant
with Teodorica Endencia in the breach of said contract; and inasmuch as father Juan
Labarga, at the time of said unlawful intervention between the contracting parties, was
fully aware of the existence of the contract (Exhibit C) which the plaintiff had made with
S.B. Wake eld, Francisco, it is insisted that the defendant corporation is liable for the
loss consequent upon the failure of the project outlined in said contract.
In this connection reliance is placed by the plaintiff upon certain American and
English decisions in which it is held that a person who is a stranger to a contract may,
by an unjusti able interference in the performance thereof, render himself liable for the
damages consequent upon non-performance. It is said that the doctrine of these cases
was recognized by this court in Gilchrist vs. Cuddy (29 Phil. Rep., 542); and we have
been earnestly pressed to extend the rule there enunciated to the situation here
presented.
Somewhat more than half a century ago the English Court of the Queen's Bench
saw its way clear to permit an action for damages to be maintained against a stranger
to a contract wrongfully interfering in its performance. The leading case on this subject
is Lumley vs. Gye ( [1853], 2 El. & Bl., 216). It there appeared that the plaintiff, as
manager of a theatre, had entered into a contract with Miss Johanna Wagner, an opera
singer, whereby she bound herself for a period to sing in the plaintiff's theatre and
nowhere else. The defendant, knowing of the existence of this contract, and, as the
declaration alleged, "maliciously intending to injure the plaintiff," enticed and procured
Miss Wagner to leave the plaintiff's employment. It was held that the plaintiff was
entitled to recover damages. The right which was here recognized had its origin in a
rule, long familiar to the courts of the common law, to the effect that any person who
entices a servant from his employment is liable in damages to the master. The master's
interest in the service rendered by his employee is here considered as a distinct subject
of juridical right. It being thus accepted that it is a legal wrong to break up a relation of
personal service, the question now arose whether it is illegal for one person to interfere
with any contract relation subsisting between others. Prior to the decision of Lumley vs.
Gye [ supra] it had been supposed that the liability here under consideration was limited
to the cases of the enticement of menial servants, apprentices, and others to whom the
English Statutes of Laborers were applicable. But in the case cited the majority of the
judges concurred in the opinion that the principle extended to all cases of hiring. This
doctrine was followed by the Court of Appeal in Bowen vs. Hall ( [1881], 6 Q.B., Div.,
333); and in Temperton vs. Russell ([1893], 1 Q.B., 715), it was held that the right of
action for maliciously procuring a breach of contract is not con ned to contracts for
personal services, but extends to contracts in general. In that case the contract which
the defendant had procured to be breached was a contract for the supply of building
material.
Malice in some form is generally supposed to be an essential ingredient in cases
of interference with contract relations. But upon the authorities it is enough if the
wrongdoer, having knowledge of the existence of the contract relation, in bad faith sets
about to break it up. Whether his motive is to bene t himself or gratify his spite by
working mischief to the employer is immaterial. Malice in the sense of ill-will or spite is
not essential.
Upon the question as to what constitutes legal justi cation, a good illustration
was put in the leading case. If a party enters into contract to go for another upon a
journey to a remote and unhealthful climate, and a third per son, with a bona de
purpose of bene ting the one who is under contract to go, dissuades him from the
step, no action will lie. But if the advice is not disinterested and the persuasion is used
for "the indirect purpose of bene ting the defendant at the expense of the plaintiff," the
intermedler is liable if his advice is taken and the contract broken.
The doctrine embodied in the cases just cited has sometimes been found useful,
in the complicated relations of modern industry, as a means of restraining the activities
of labor unions and industrial societies when improperly engaged in the promotion of
strikes. An illustration of the application of the doctrine in question in a case of this kind
is found in South Wales Miners Federation vs. Glamorgan Coal Co. ( [1905], A. C., 239) .
It there appeared that certain miners employed in the plaintiff's collieries, acting under
the order of the executive council of the defendant federation, violated their contract
with the plaintiff by abstaining from work on certain days. The federation and council
acted without any actual malice or ill-will towards the plaintiff, and the only object of the
order in question was that the price of coal might thereby be kept up, a factor which
affected the miner's wage scale. It was held that no su cient justi cation was shown
and that the federation was liable.
In the United States, the rule established in England by Lumley vs. Gye [ supra] and
subsequent cases is commonly accepted, though in a few of the States the broad idea
that a stranger to a contract can be held liable upon it is rejected, and in these
jurisdictions the doctrine, if accepted at all, is limited to the situation where the contract
is strictly for personal service. (Boyson vs. Thorn, 98 Cal., 578; Chambers & Marshall vs.
Baldwin 91 Ky., 121; bourlier vs. Macauley, 91 Ky., 135; Glencoe Land & Gravel Co. vs.
Hudson Bros. Com. Co., 138 Mo., 439.)
It should be observed in this connection that, according to the English and
American authorities, no question can be made as to the liability of one who interferes
with a contract existing between others by means which, under known gal canons, can
be denominated an unlawful means. Thus, if performance is prevented by force,
intimidation, coercion, or threats, or by false or defamatory statements, or by nuisance
or riot, the person using such unlawful means is, under all the authorities, liable for the
damage which ensues. And in jurisdictions where the doctrine of Lumley is. Gye [ supra]
is rejected, no liability can arise from a neddlesome and malicious interference with a
contract relation unless some such unlawful means as those just indicated are used.
(See cases last above cited.)
This brings us to the decision made by this court in Gilchrist vs. Cuddy (29 Phil.
Rep., 542) It there appeared that one Cuddy, the owner of a cinematographic lm, let it
under a rental contract to the plaintiff Gilchrist for a speci ed period of time. In
violation of the terms of this agreement, Cuddy proceeded to turn over the lm also
under a rental contract, to the defendants Espejo and Zaldarriaga. Gilchrist thereupon
restored to the Court of First Instance and procured an injunction restraining the
defendants from exhibiting the lm in question in their theater during the period
speci ed in the contract of Cuddy with Gilchrist. Upon appeal to this court it was in
effect held that the injunction was not improperly granted, although the defendants did
not, at the time their contract was made, know the identity of the plaintiff as the person
holding the prior contract but did know of the existence of a contracting favor of
someone. It was also said argue do, that the defendants would have been liable in
damages under Article 1902 of the Civil Code, if the action had been brought by the
plaintiff to recover damages. The force of the opinion is, we think, somewhat weakened
by the criticism contained in the concurring opinion, wherein it is said that the question
of breach of contract by inducement was not really involved in the case. Taking the
decision upon the point which was really decided, it is authority for the proposition that
one who buys something which he knows has been sold to some other person can be
restrained from using that thing to the prejudice of the person having the prior and
better right.
Translated into terms applicable to the case at bar, the decision in Gilchrist vs.
Cuddy (29 Phil. Rep., 542), indicates that the defendant corporation, having notice of
the sale of the land in question to Daywalt, might have been enjoined by the latter from
using the property for grazing its cattle thereon. That the defendant corporation is also
liable in this action for the damage resulting to the plaintiff from the wrongful use and
occupation of the property has also been already determined. But it will be observed
that in order to sustain this liability it is not necessary to resort to any subtle exegesis
relative to the liability of a stranger to a contract for unlawful interference in the
performance thereof. It is enough that defendant used the property with notice that the
plaintiff had a prior and better right.
Article 1902 of the Civil Code declares that any person who by an act or
omission, characterized by fault or negligence, causes damage to another shall be
liable for the damage so done. Ignoring so much of this article as relates to liability for
negligence, we take the rule to be that a person is liable for damage done to another by
any culpable act and by "culpable act" we mean any act which is blameworthy when
judged by accepted legal standards. The idea thus expressed is undoubtedly broad
enough to include any rational conception of liability for the tortious acts likely to be
developed in any society. Thus considered, it cannot be said that the doctrine of Lumley
vs. Gye [supra] and related cases is repugnant to the principles of the civil law.
Nevertheless, it must be admitted that the codes and jurisprudence of the civil
law furnish a somewhat uncongenial eld in which to propagate the idea that a stranger
to a contract may be sued for the breach thereof. Article 1257 of the Civil Code
declares that contracts are binding only between the parties and their privies. In
conformity with this it has been held that a stranger to a contract has no right of action
for the nonful llment of the contract except in the case especially contemplated in the
second paragraph of the same article. (Uy Tam and Uy Yet vs. Leonard, 30 Phil. Rep.,
471.) As observed by this court in Manila Railroad Co. vs. Compania Trasatlantica, R.G.
No. 11318 (38 Phil. Rep., 875), a contract, when effectually entered into between certain
parties, determines not only the character and extent of the liability of the contracting
parties but also the person or entity by whom the obligation is exigible. The same idea
should apparently be applicable with respect to the person against whom the
obligation of the contract may be enforced; for it is evident that there must be a certain
mutuality in the obligation, and if the stranger to a contract is not permitted to sue to
enforce it, he cannot consistently be held liable upon it.
If the two antagonistic ideas which we have just brought into juxtaposition are
capable of reconciliation, the process must be accomplished by distinguishing clearly
between the right of action arising from the improper interference with the contract by
a stranger thereto, considered as an independent act generative of civil liability, and the
right of action ex contractu against a party to the contract resulting from the breach
thereof. However, we do not propose here to pursue the matter further, inasmuch as,
for reasons presently to be stated, we are of the opinion that neither the doctrine of
Lumley vs. Gye [ supra] nor the application made of it by this court in Gilchrist vs. Cuddy
(29 Phil. Rep., 542), affords any basis for the recovery of the damages which the
plaintiff is supposed to have suffered by reason of his inability to comply with the
terms of the Wakefield contract.
Whatever may be the character of the liability which a stranger to a contract may
incur by advising or assisting one of the parties to evade performance, there is one
proposition upon which all must agree. This is, that the stranger cannot become more
extensively liable in damages for the nonperformance of the contract than the party in
whose behalf he intermeddles. To hold the stranger liable for damages in excess of
those that could be recovered against the immediate party to the contract would lead
to results at once grotesque and unjust. In the case at bar, as Teodorica Endencia was
the party directly bound by the contract, it is obvious that the liability of the defendant
corporation, even admitting that it has made itself co-participant in the breach of the
contract, can in no event exceed hers. This leads us to consider at this point the extent
of the liability of Teodorica Endencia to the plaintiff by reason of her failure to surrender
the certificate of title and to place the plaintiff in possession.
It should in the rst place be noted that the liability of Teodorica Endencia for
damages resulting from the breach of her contract with Daywalt was a proper subject
for adjudication in the action for speci c performance which Daywalt instituted against
her in 1909 and which was litigated by him to a successful conclusion in this court, but
without obtaining any special adjudication with reference to damages. Indemni cation
for damages resulting from the breach of a contract is a right inseparably annexed to
every action for the ful llment of the obligation (Art. 1124, Civil Code); and it is clear
that if damages are not sought or recovered in the action to enforce performance they
cannot be recovered in an independent action. As to Teodorica Endencia, therefore, it
should be considered that the right of action to recover damages for the breach of the
contract in question was exhausted in the prior suit. However, her attorneys have not
seen t to interpose the defense of res judicata in her behalf; and as the defendant
corporation was not a party to that action, and such defense could not in any event be
of any avail to it, we proceed to consider the question of the liability of Teodorica
Endencia for damages without reference to this point.
The most that can be said with reference to the conduct of Teodorica Endencia
is that she refused to carry out a contract for the sale of certain land and resisted to the
last an action for speci c performance in court. The result was that the plaintiff was
prevented during a period of several years from exerting that control over the property
which he was entitled to exert and was meanwhile unable to dispose of the property
advantageously. Now, what is the measure of damages for the wrongful detention of
real property by the vender after the time has come for him to place the purchaser in
possession?
The damages ordinarily and normally recoverable against a vendor for failure to
deliver land which he has contracted to deliver is the value of the use and occupation of
the land for the time during which it is wrongfully withheld. And of course where the
purchaser has not paid the purchase money, a deduction may be made in respect to the
interest on the money which constitutes the purchase price. Substantially the same rule
holds with respect to the liability of a landlord who fails to put his tenant in possession
pursuant to a contract of lease. The measure of damages is the value of the leasehold
interest, or use and occupation, less the stipulated rent, where this has not been paid.
The rule that the measure of damages for the wrongful detention of land is normally to
be found in the value of use and occupation is, we believe, one of the things that may be
considered certain in the law (39 Cyc., 1630; 24 Cyc., 1052; Sedgewick on Damages,
Ninth ed., Sec. 185.) — almost as well settled, indeed, as the rule that the measure of
damages for the wrongful detention of money is to be found in the interest.
We recognize the possibility that more extensive damages may be recovered
where, at the time of the creation of the contractual obligation, the vendor, or lessor, is
aware of the use to which the purchaser or lessee desires to put the property which is
the subject of the contract, and the contract is made with the eyes of the vendor or
lessor open to the possibility of the damage which may result to the other party from
his own failure to give possession. The case before us is not of this character,
inasmuch as at the time when the rights of the parties under the contract were
determined, nothing was known to any of them about the San Francisco capitalist who
would be willing at back the project portrayed in Exhibit C.
The extent of the liability for the breach of a contract must be determined in the
light of the situation in existence at the time the contract is made; and the damages
ordinarily recoverable are in all events limited to such as might be reasonably foreseen
in the light of the facts then known to the contracting parties. Where the purchaser
desires to protect himself, in the contingency of the failure of the vendor promptly to
give possession, from the possibility of incurring other damages than such as are
incident to the normal value of the use and occupation, he should cause to be inserted
in the contract a clause providing for stipulated amount to be paid upon failure of the
vendor to give possession; and no case has been called to our attention where, in the
absence of such a stipulation, damages have been held to be recoverable by the
purchaser in excess of the normal value of use and occupation. On the contrary, the
most fundamental conceptions of the law relative to the assessment of damages are
inconsistent with such idea.
The principles governing this branch of the law were profoundly considered in the
case of Hadley vs. Baxendale (9 Exch., 341), decided in the English Court of Exchequer
in 1854; and a few words relative to the principles governing the recovery of damages,
as expounded in that decision, will here be found instructive. The decision in that case is
considered a leading authority in the jurisprudence of the common law. The plaintiffs in
that case were proprietors of a mill in Gloucester, which was propelled by steam, and
which was engaged in grinding and supplying meal and our to customers. The shaft of
the engine got broken, and it became necessary that the broken shaft be sent to an
engineer or foundry man at Greenwich, to serve as a model for casting or
manufacturing another that would t into the machinery. The broken shaft could be
delivered at Greenwich on the second day after its receipt by the carrier It was delivered
to the defendants, who were common carriers engaged in that business between these
points, and who had told plaintiffs it would be delivered at Greenwich on the second
day after its delivery to them, if delivered at a given hour. The carriers were informed
that the mill was stopped, but were not informed of the special purpose for which the
broken shaft was desired to be forwarded. They were not told the mill would remain
idle until the new shaft would be returned, or that the new shaft could not be
manufactured at Greenwich until the broken one arrived to serve as a model. There was
delay beyond the two days in delivering the broken shaft at Greenwich, and a
corresponding delay in starting the mill. No explanation of the delay was offered by the
carriers. The suit was brought to recover damages for the lost pro ts of the mill,
caused by the delay in delivering the broken shaft. It was held that the plaintiff could not
recover.
The discussion contained in the opinion of the court in that case leads to the
conclusion that the damages recoverable in case of the breach of a contract are two
sorts, namely, (1) the ordinary, natural, and in a sense necessary damage; and (2)
special damages.
Ordinary damages is found in all breaches of contract where there are no special
circumstances to distinguish the case specially from other contracts. The
consideration paid for an unperformed promise is an instance of this sort of damage.
In all such cases the damages recoverable are such as naturally and generally would
result from such a breach, "according to the usual course of things." In cases involving
only ordinary damage no discussion is ever indulged as to whether that damage was
contemplated or not. This is conclusively presumed from the immediateness and
inevitableness of the damage, and the recovery of such damage follows as a necessary
legal consequence of the breach. Ordinary damage is assumed as a matter of law to be
within the contemplation of the parties.
Special damage, on the other hand, is such as follows less directly from the
breach than ordinary damage. It is only found in case where some external condition,
apart from the actual terms to the contract exists or intervenes, as it were, to give a turn
to affairs and to increase damage in a way that the promisor, without actual notice of
that external condition, could not reasonably be expected to foresee. Concerning this
sort of damage, Hadley vs. Baxendale (1854) [ supra] lays down the de nite and just
rule that before such damage can be recovered the plaintiff must show that the
particular condition which made the damage a possible and likely consequence of the
breach was known to the defendant at the time the contract was made.
The statement that special damages may be recovered where the likelihood of
such damages owing from the breach of the contract is contemplated and foreseen
by the parties needs to be supplemented by a proposition which, though not enunciated
in Hadley vs. Baxendale, is yet clearly to be drawn from subsequent cases. This is that
where the damage which a plaintiff seeks to recover as special damage is so far
speculative as to be in contemplation of law remote, noti cation of the special
conditions which make that damage possible cannot render the defendant liable
therefor. To bring damages which would ordinarily be treated as remote within the
category of recoverable special damages, it is necessary that the condition should be
made the subject of contract in such sense as to become an express or implied term of
the engagement. Horne vs. Midland R. Co. (L R., 8 C.P., 131) is a case where the damage
which was sought to be recovered as special damage was really remote, and some of
the judges rightly placed the disallowance of the damage on the ground that to make
such damage recoverable, it must so far have been within the contemplation of the
parties as to form at least an implied term of the contract. But others proceeded on the
idea that the notice given to the defendant was not su ciently full and de nite. The
result was the same in either view. The facts in that case were as follows: The plaintiffs,
shoe manufacturers at K, were under contract to supply by a certain day shoes to a rm
in London for the French government. They delivered the shoes to a carrier in su cient
time for the goods to reach London at the time stipulated in the contract and informed
the railroad agent that the shoes would be thrown back upon their hands if they did not
reach the destination in time. The defendants negligently failed to forward the good in
due season. The sale was therefore lost, and the market having fallen, the plaintiffs had
to sell at a loss.
In the preceding discussion we have considered the plaintiff's right chie y as
against Teodorica Endencia; and what has been said su ces in our opinion to
demonstrate that the damages laid under the second cause of action in the complaint
could not be recovered from her, rst, because the damages in question are special
damages which were not within contemplation of the parties when the contract was
made, and secondly, because said damages are too remote to be the subject of
recovery. This conclusion is also necessarily fatal to the right of the plaintiff to recover
such damages from the defendant corporation, for, as already suggested, by advising
Teodorica not to perform the contract, said corporation could in no event render itself
more extensively liable than the principal in the contract.
Our conclusion is that the judgment of the trial court should be a rmed, and it is
so ordered, with costs against the appellant.
Arellano, C. J., Torres, Carson, Araullo, Malcolm, Avanceña and Moir, JJ., concur.

EN BANC
[G.R. No. L-12219. March 15, 1918.]
AMADO PICART , plaintiff-appellant, vs . FRANK SMITH, jr. , defendant-

appellee.
Alejo Mabanag for appellant.

G. E. Campbell for appellee.
SYLLABUS
1. NEGLIGENCE; CRITERION FOR DETERMINING EXISTENCE OF NEGLIGENCE. —

The test for determining whether a person is negligent in doing an act whereby injury or
damage results to the person or property of another is this: Would a prudent man, in the
position of the person to whom negligence is attributed, foresee harm to the person
injured as a reasonable consequence of the course about to be pursued. If so, the law
imposes a duty on the actor to refrain from that course or to take precaution against its
mischievous results, and the failure to do so constitutes negligence. Reasonable
foresight of harm, followed by the ignoring of the admonition born of this prevision, is
the constitutive fact in negligence.
2. ID.; CONTRIBUTORY NEGLIGENCE; SUCCESSIVE NEGLIGENT ACTS. — Where
both parties are guilty of negligence, but the negligent act of one succeeds that of the
other by an appreciable interval of time, the one who has the last reasonable
opportunity to avoid the impending harm and fails to do so is chargeable with the
consequences, without reference to the prior negligence of the other party.
3. ID.; ID.; CASE AT BAR. — The plaintiff was riding a pony on a bridge. Seeing an
automobile ahead he improperly pulled his horse over to the railing on the right. The
driver of the automobile, however, guided his car toward the plaintiff without diminution
of speed until he was only a few feet away. He then turned to the right but passed so
closely to the horse that the latter being frightened, jumped around and was killed by
the passing car. Held: That although the plaintiff was guilty of negligence in being on
the wrong side of the bridge, the defendant was nevertheless civilly liable for the legal
damages resulting from the collision, as he had a fair opportunity to avoid the accident
after he realized the situation created by the negligence of the plaintiff and failed to
avail himself of that opportunity; while the plaintiff could by no means then place
himself in a position of greater safety.
DECISION
STREET , J : p
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank
Smith, jr., the sum of P31,100, as damages alleged to have been caused by an
automobile driven by the defendant. From a judgment of the Court of First Instance of
the Province of La Union absolving the defendant from liability the plaintiff has
appealed.
The occurrence which gave rise to the institution of this action took place on
December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It appears that
upon the occasion in question the plaintiff was riding on his pony over said bridge.
Before he had gotten half way across, the defendant approached from the opposite
direction in an automobile, going at the rate of about ten or twelve miles per hour. As
the defendant neared the bridge he saw a horseman on it and blew his horn to give
warning of his approach. He continued his course and after he had taken the bridge he
gave two more successive blasts, as it appeared to him that the man on horseback
before him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning
signals. However, being perturbed by the novelty of the apparition or the rapidity of the
approach, he pulled the pony closely up against the railing on the right side of the
bridge instead of going to the left. He says that the reason he did this was that he
thought he did not have su cient time to get over to the other side. The bridge is
shown to have a length of about 75 meters and a width of 4.08 meters. As the
automobile approached, the defendant guided it toward his left, that being the proper
side of the road for the machine. In so doing the defendant assumed that the horseman
would move to the other side. The pony had not as yet exhibited fright, and the rider had
made no sign for the automobile to stop. Seeing that the pony was apparently quiet, the
defendant, instead of veering to the right while yet some distance away or slowing
down, continued to approach directly toward the horse without diminution of speed.
When he had gotten quite near, there being then no possibility of the horse getting
across to the other side, the defendant quickly turned his car su ciently to the right to
escape hitting the horse alongside of the railing where it was then standing; but in so
doing the automobile passed in such close proximity to the animal that it became
frightened and turned its body across the bridge with its head toward the railing. In so
doing, it was struck on the hock of the left hind leg by the ange of the car and the limb
was broken. The horse fell and its rider was thrown off with some violence. From the
evidence adduced in the case we believe that when the accident occurred the free
space where the pony stood between the automobile and the railing of the bridge was
probably less than one and one half meters. As a result of its injuries the horse died.
The plaintiff received contusions which caused temporary unconsciousness and
required medical attention for several days.
The question presented for decision is whether or not the defendant in
maneuvering his car in the manner above described was guilty of negligence such as
gives rise to a civil obligation to repair the damage done; and we are of the opinion that
he is so liable. As the defendant started across the bridge, he had the right to assume
that the horse and rider would pass over to the proper side; but as he moved toward
the center of the bridge it was demonstrated to his eyes that this would not be done;
and he must in a moment have perceived that it was too late for the horse to cross with
safety in front of the moving vehicle. In the nature of things this change of situation
occurred while the automobile was yet some distance away; and from this moment it
was not longer within the power of the plaintiff to escape being run down by going to a
place of greater safety. The control of the situation had then passed entirely to the
defendant; and it was his duty either to bring his car to an immediate stop or, seeing
that there were no other persons on the bridge, to take the other side and pass
su ciently far away from the horse to avoid the danger of collision. Instead of doing
this, the defendant ran straight on until he was almost upon the horse. He was, we think,
deceived into doing this by the fact that the horse had not yet exhibited fright. But in
view of the known nature of horses, there was an appreciable risk that, if the animal in
question was unacquainted with automobiles, he might get excited and jump under the
conditions which here confronted him. When the defendant exposed the horse and rider
to this danger he was, in our opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a particular case
may be stated as follows: Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent person would have used in the
same situation? If not, then he is guilty of negligence. The law here in effect adopts the
standard supposed to be supplied by the imaginary conduct of the discreet
paterfamilias of the Roman law. The existence of negligence in a given case is not
determined by reference to the personal judgment of the actor in the situation before
him. The law considers what would be reckless, blameworthy, or negligent in the man of
ordinary intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a
given situation must of course be always determined in the light of human experience
and in view of the facts involved in the particular case. Abstract speculation cannot here
be of much value but his much can be pro tably said: Reasonable men govern their
conduct by the circumstances which are before them or known to them. They are not,
and are not supposed to be, omniscient of the future. Hence they can be expected to
take care only when there is something before them to suggest or warn of danger.
Could a prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take precautions to guard
against that harm. Reasonable foresight of harm, followed by the ignoring of the
suggestion born of this prevision, is always necessary before negligence can be held to
exist. Stated in these terms, the proper criterion for determining the existence of
negligence in a given case is this: Conduct is said to be negligent when a prudent man
in the position of the tortfeasor would have foreseen that an effect harmful to another
was su ciently probable to warrant his foregoing the conduct or guarding against its
consequences.
Applying this test to the conduct of the defendant in the present case we think
that negligence is clearly established. A prudent man, placed in the position of the
defendant, would, in our opinion, have recognized that the course which he was
pursuing was fraught with risk, and would therefore have foreseen harm to the horse
and rider as a reasonable consequence of that course. Under these circumstances the
law imposed on the defendant the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he
was guilty of antecedent negligence in planting himself on the wrong side of the road.
But as we have already stated, the defendant was also negligent; and in such case the
problem always is to discover which agent is immediately and directly responsible. It
will be noted that the negligent acts of the two parties were not contemporaneous,
since the negligence of the defendant succeeded the negligence of the plaintiff by an
appreciable interval. Under these circumstances the law is that the person who has the
last fair chance to avoid the impending harm and fails to do so is chargeable with the
The decision in the case of Rakes vs. Atlantic, Gulf and Paci c Co.(7 Phil. Rep.,
359) should perhaps be mentioned in this connection. This Court there held that while
contributory negligence on the part of the person injured did not constitute a bar to
recover, it could be received in evidence to reduce the damages which would otherwise
have been assessed wholly against the other party. The defendant company had there
employed the plaintiff, a laborer, to assist in transporting iron rails from a barge in
Manila harbor to the company's yards located not far away. The rails were conveyed
upon cars which were hauled along a narrow track. At a certain spot near the water's
edge the track gave way by reason of the combined effect of the weight of the car and
the insecurity of the road bed. The car was in consequence upset; the rails slid off; and
the plaintiff's leg was caught and broken. It appeared in evidence that the accident was
due to the effects of a typhoon which had dislodged one of the supports of the track.
The court found that the defendant company was negligent in having failed to repair the
bed of the track and also that the plaintiff was, at the moment of the accident, guilty of
contributory negligence in walking at the side of the car instead of being in front or
behind. It was held that while the defendant was liable to the plaintiff by reason of its
negligence in having failed to keep the track in proper repair, nevertheless the amount
of the damages should be reduced on account of the contributory negligence of the
plaintiff. As will be seen the defendant's negligence in that case consisted in an
omission only. The liability of the company arose from its responsibility for the
dangerous condition of its track. In a case like the one now before us, where the
defendant was actually present and operating the automobile which caused the
damage, we do not feel constrained to attempt to weigh the negligence of the
respective parties in order to apportion the damage according to the degree of their
relative fault. It is enough to say that the negligence of the defendant was in this case
the immediate and determining cause of the accident and that the antecedent
negligence of the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense
pleaded in the defendant's answer, to the effect that the subject matter of the action
had been previously adjudicated in the court of a justice of the peace. In this connection
it appears that soon after the accident in question occurred, the plaintiff caused
criminal proceedings to be instituted before a justice of the peace charging the
defendant with the in iction of serious injuries (lesiones graves). At the preliminary
investigation the defendant was discharged by the magistrate and the proceedings
were dismissed. Conceding that the acquittal of the defendant at a trial upon the merits
in a criminal prosecution for the offense mentioned would be res adjudicata upon the
question of his civil liability arising from negligence — a point upon which it is
unnecessary to express an opinion — the action of the justice of the peace in
dismissing the criminal proceeding upon the preliminary hearing can have no such
effect. (See U.S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court must be
reversed, and judgment is here rendered that the plaintiff recover of the defendant the
sum of two hundred pesos (P200), with costs of both instances. The sum here
awarded is estimated to include the value of the horse, medical expenses of the
plaintiff, the loss or damage occasioned to articles of his apparel, and lawful interest on
the whole to the date of this recovery. The other damages claimed by the plaintiff are
remote or otherwise of such characters as not to be recoverable. So ordered.
Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ., concur.
Johnson, J., reserves his vote.
Separate Opinions
MALCOLM , J., concurring :
After mature deliberation, I have nally decided to concur with the judgment in
this case. I do so because of my understanding of the "last clear chance" rule of the law
of negligence as particularly applied to automobile accidents. This rule cannot be
invoked where the negligence of the plaintiff is concurrent with that of the defendant.
Again, if a traveller when he reaches the point of collision is in a situation to extricate
himself and avoid injury, his negligence at that point will prevent a recovery. But Justice
Street nds as a fact that the negligent act of the defendant succeeded that of the
plaintiff by an appreciable interval of time, and that at that moment the plaintiff had no
opportunity to avoid the accident. consequently, the "last clear chance" rule is
applicable. In other words, when a traveller has reached a point where he cannot
extricate himself and vigilance on his part will not avert the injury, his negligence in
reaching that position becomes the condition and not the proximate cause of the injury
and will not preclude a recovery. (Note especially Aiken vs. Metcalf [1917], 102 Atl.,
330.)

THIRD DIVISION
[G.R. No. 174161. February 18, 2015.]
R TRANSPORT CORPORATION , petitioner, vs . LUISITO G. YU ,

respondent.
DECISION
PERALTA , J : p
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court seeking to reverse and set aside the Decision 1 and Resolution, 2 dated September 9,
2005 and August 8, 2006, respectively, of the Court of Appeals ( CA) in CA-G.R. CV No.
84175.
The antecedent facts are as follows:
At around 8:45 in the morning of December 12, 1993, Loreta J. Yu, after having
alighted from a passenger bus in front of Robinson's Galleria along the north-bound lane of
Epifanio de los Santos Avenue (EDSA), was hit and run over by a bus driven by Antonio P.
Gimena, who was then employed by petitioner R Transport Corporation. Loreta was
immediately rushed to Medical City Hospital where she was pronounced dead on arrival. 3
On February 3, 1994, the husband of the deceased, respondent Luisito G. Yu, led a
Complaint for damages before the Regional Trial Court (RTC) of Makati City against
petitioner R Transport, Antonio Gimena, and Metro Manila Transport Corporation (MMTC)
for the death of his wife. MMTC denied its liability reasoning that it is merely the registered
owner of the bus involved in the incident, the actual owner, being petitioner R Transport. 4 It
explained that under the Bus Installment Purchase Program of the government, MMTC
merely purchased the subject bus, among several others, for resale to petitioner R
Transport, which will in turn operate the same within Metro Manila. Since it was not
actually operating the bus which killed respondent's wife, nor was it the employer of the
driver thereof, MMTC alleged that the complaint against it should be dismissed. 5 For its
part, petitioner R Transport alleged that respondent had no cause of action against it for it
had exercised due diligence in the selection and supervision of its employees and drivers
and that its buses are in good condition. Meanwhile, the driver Antonio Gimena was
declared in default for his failure to file an answer to the complaint. DcAaSI
After trial on the merits, wherein the parties presented their respective witnesses
and documentary evidence, the trial court rendered judgment in favor of respondent Yu
ruling that petitioner R Transport failed to prove that it exercised the diligence required of a
good father of a family in the selection and supervision of its driver, who, by its negligence,
ran over the deceased resulting in her death. It also held that MMTC should be held
solidarily liable with petitioner R Transport because it would unduly prejudice a third
person who is a victim of a tort to look beyond the certi cate of registration and prove
who the actual owner is in order to enforce a right of action. Thus, the trial court ordered
the payment of damages in its Decision 6 dated June 3, 2004, the dispositive portion of
which reads:
CD Technologies Asia, Inc. 2018 cdasiaonline.com
WHEREFORE, foregoing premises considered, judgment is hereby rendered
ordering defendants Rizal Transport and Metro Manila Transport Corporation to
be primarily and solidarily liable and defendant Antonio Parraba Gimena
subsidiarily liable to plaintiff Luisito Yu as follows:
1. Actual damages in the amount of Php78,357.00 subject to interest at the

legal rate from the filing of the complaint until fully paid;
2. Loss of income in the amount of Php500,000.00;
3. Moral damages in the amount of P150,000.00;
4. Exemplary damages in the amount of P20,000.00;
5. Attorney's fees in the amount of P10,000.00; and

6. Costs of suit. 7
On September 9, 2005, the CA a rmed the Decision of the RTC with modi cation
that defendant Antonio Gimena is made solidarily liable for the damages caused to
respondent. According to the appellate court, considering that the negligence of Antonio
Gimena was su ciently proven by the records of the case, and that no evidence of
whatever nature was presented by petitioner to support its defense of due diligence in the
selection and supervision of its employees, petitioner, as the employer of Gimena, may be
held liable for the damage caused. The CA noted that the fact that petitioner is not the
registered owner of the bus which caused the death of the victim does not exculpate it
from liability. 8 Thereafter, petitioner's Motion for Reconsideration was further denied by
the CA in its Resolution 9 dated August 8, 2006.
Hence, the present petition.
Petitioner essentially invokes the following ground to support its petition:
I.
THE COURT OF APPEALS ERRED IN AFFIRMING THE RULING OF THE

REGIONAL TRIAL COURT FINDING PETITIONER LIABLE FOR THE DAMAGES
CAUSED BY THE NEGLIGENCE OF ITS EMPLOYEE, WHICH WAS NOT
SUPPORTED BY THE EVIDENCE ON RECORD.
Petitioner insists that the CA and the RTC were incorrect in ruling that its driver was
negligent for aside from the mere speculations and uncorroborated testimonies of the
police o cers on duty at the time of the accident, no other evidence had been adduced to
prove that its driver was driving in a reckless and imprudent manner. It asserts that
contrary to the ndings of the courts below, the bus from which the victim alighted is
actually the proximate cause of the victim's death for having unloaded its passengers on
the lane where the subject bus was traversing. Moreover, petitioner reiterates its argument
that since it is not the registered owner of the bus which bumped the victim, it cannot be
held liable for the damage caused by the same. SAcaDE
We disagree.
Time and again, it has been ruled that whether a person is negligent or not is a
question of fact which this Court cannot pass upon in a petition for review on certiorari, as
its jurisdiction is limited to reviewing errors of law. 10 This Court is not bound to weigh all
over again the evidence adduced by the parties, particularly where the ndings of both the
trial and the appellate courts on the matter of petitioners' negligence coincide. As a
general rule, therefore, the resolution of factual issues is a function of the trial court, whose
ndings on these matters are binding on this Court, more so where these have been
a rmed by the Court of Appeals, 11 save for the following exceptional and meritorious
circumstances: (1) when the factual ndings of the appellate court and the trial court are
contradictory; (2) when the ndings of the trial court are grounded entirely on speculation,
surmises or conjectures; (3) when the lower court's inference from its factual ndings is
manifestly mistaken, absurd or impossible; (4) when there is grave abuse of discretion in
the appreciation of facts; (5) when the findings of the appellate court go beyond the issues
of the case, or fail to notice certain relevant facts which, if properly considered, will justify a
different conclusion; (6) when there is a misappreciation of facts; (7) when the ndings of
fact are themselves con icting; and (8) when the ndings of fact are conclusions without
mention of the speci c evidence on which they are based, are premised on the absence of
evidence, or are contradicted by evidence on record. 12
After a review of the records of the case, we nd no cogent reason to reverse the
rulings of the courts below for none of the aforementioned exceptions are present herein.
Both the trial and appellate courts found driver Gimena negligent in hitting and running
over the victim and ruled that his negligence was the proximate cause of her death.
Negligence has been de ned as "the failure to observe for the protection of the interests
of another person that degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury." 13 Verily, foreseeability is the
fundamental test of negligence. 14 It is the omission to do something which a reasonable
man, guided by those considerations which ordinarily regulate the conduct of human
affairs, would do, or the doing of something which a prudent and reasonable man would
not do. 15
In this case, the records show that driver Gimena was clearly running at a reckless
speed. As testi ed by the police o cer on duty at the time of the incident 16 and indicated
in the Autopsy Report, 17 not only were the deceased's clothes ripped off from her body,
her brain even spewed out from her skull and spilled over the road. Indeed, this Court is not
prepared to believe petitioner's contention that its bus was travelling at a "normal speed" in
preparation for a full stop in view of the fatal injuries sustained by the deceased. Moreover,
the location wherein the deceased was hit and run over further indicates Gimena's
negligence. As borne by the records, the bus driven by Gimena bumped the deceased in a
loading and unloading area of a commercial center. The fact that he was approaching such
a busy part of EDSA should have already cautioned the driver of the bus. In fact, upon
seeing that a bus has stopped beside his lane should have signalled him to step on his
brakes to slow down for the possibility that said bus was unloading its passengers in the
area. Unfortunately, he did not take the necessary precaution and instead, drove on and
bumped the deceased despite being aware that he was traversing a commercial center
where pedestrians were crossing the street. Ultimately, Gimena should have observed due
diligence of a reasonably prudent man by slackening his speed and proceeding cautiously
while passing the area.
Under Article 2180 18 of the New Civil Code, employers are liable for the damages
caused by their employees acting within the scope of their assigned tasks. Once
negligence on the part of the employee is established, a presumption instantly arises that
the employer was remiss in the selection and/or supervision of the negligent employee. To
avoid liability for the quasi-delict committed by its employee, it is incumbent upon the
employer to rebut this presumption by presenting adequate and convincing proof that it
exercised the care and diligence of a good father of a family in the selection and
supervision of its employees. 19 TaSEHC
Unfortunately, however, the records of this case are bereft of any proof showing the
exercise by petitioner of the required diligence. As aptly observed by the CA, no evidence
of whatever nature was ever presented depicting petitioner's due diligence in the selection
and supervision of its driver, Gimena, despite several opportunities to do so. In fact, in its
petition, apart from denying the negligence of its employee and imputing the same to the
bus from which the victim alighted, petitioner merely reiterates its argument that since it is
not the registered owner of the bus which bumped the victim, it cannot be held liable for
the damage caused by the same. Nowhere was it even remotely alleged that petitioner had
exercised the required diligence in the selection and supervision of its employee. Because
of this failure, petitioner cannot now avoid liability for the quasi-delict committed by its
negligent employee.
At this point, it must be noted that petitioner, in its relentless attempt to evade
liability, cites our rulings in Vargas v. Langcay 20 and Tamayo v. Aquino 21 insisting that it
should not be held solidarily liable with MMTC for it is not the registered owner of the bus
which killed the deceased. However, this Court, in Jereos v. Court of Appeals, et al., 22
rejected such contention in the following wise:
Finally, the petitioner, citing the case of Vargas vs. Langcay,
contends that it is the registered owner of the vehicle, rather than the
actual owner, who must be jointly and severally liable with the driver of
the passenger vehicle for damages incurred by third persons as a
consequence of injuries or death sustained in the operation of said
vehicle.
The contention is devoid of merit. While the Court therein ruled
that the registered owner or operator of a passenger vehicle is jointly
and severally liable with the driver of the said vehicle for damages
incurred by passengers or third persons as a consequence of injuries or
death sustained in the operation of the said vehicle, the Court did so to
correct the erroneous ndings of the Court of Appeals that the liability
of the registered owner or operator of a passenger vehicle is merely
subsidiary, as contemplated in Art. 103 of the Revised Penal Code. In
no case did the Court exempt the actual owner of the passenger vehicle
from liability. On the contrary, it adhered to the rule followed in the cases of
Erezo vs. Jepte, Tamayo vs. Aquino, a n d De Peralta vs. Mangusang, among
others, that the registered owner or operator has the right to be indemni ed by the
real or actual owner of the amount that he may be required to pay as damage for
the injury caused.
The right to be indemni ed being recognized, recovery by the registered

owner or operator may be made in any form-either by a cross-claim, third-party
complaint, or an independent action. The result is the same. 23
Moreover, while We held in Tamayo that the responsibility of the registered owner
and actual operator of a truck which caused the death of its passenger is not solidary, We
noted therein that the same is due to the fact that the action instituted was one for breach
of contract, to wit:
The decision of the Court of Appeals is also attacked insofar as it holds
that inasmuch as the third-party defendant had used the truck on a route not
covered by the registered owner's franchise, both the registered owner and the
actual owner and operator should be considered as joint tortfeasors and should
be made liable in accordance with Article 2194 of the Civil Code. This Article is as
follows: TcDAHS
Art. 2194. The responsibility of two or more persons who are liable for a
quasi-delict is solidary.
But the action instituted in the case at bar is one for breach of
contract, for failure of the defendant to carry safely the deceased for
her destination. The liability for which he is made responsible, i.e., for
the death of the passenger, may not be considered as arising from a
quasi-delict. As the registered owner Tamayo and his transferee Rayos
may not be held guilty of tort or a quasi-delict; their responsibility is not
solidary as held by the Court of Appeals.
The question that poses, therefore, is how should the holder of the
certificate of public convenience, Tamayo, participate with his transferee, operator
Rayos, in the damages recoverable by the heirs of the deceased passenger, if their
liability is not that of Joint tortfeasors in accordance with Article 2194 of the Civil
Code. The following considerations must be borne in mind in determining this
question. As Tamayo is the registered owner of the truck, his responsibility to the
public or to any passenger riding in the vehicle or truck must be direct, for the
reasons given in our decision in the case of Erezo vs. Jepte, supra, as quoted
above. But as the transferee, who operated the vehicle when the passenger died,
is the one directly responsible for the accident and death he should in turn be
made responsible to the registered owner for what the latter may have been
adjudged to pay. In operating the truck without transfer thereof having been
approved by the Public Service Commission, the transferee acted merely as agent
of the registered owner and should be responsible to him (the registered owner),
for any damages that he may cause the latter by his negligence. 24
However, it must be noted that the case at hand does not involve a breach of
contract of carnage, as in Tamayo, but a tort or quasi-delict under Article 2176, 25 in
relation to Article 2180 26 of the New Civil Code. As such, the liability for which petitioner is
being made responsible actually arises not from a pre-existing contractual relation
between petitioner and the deceased, but from a damage caused by the negligence of its
employee. Petitioner cannot, therefore, rely on our ruling in Tamayo and escape its solidary
liability for the liability of the employer for the negligent conduct of its subordinate is direct
and primary, subject only to the defense of due diligence in the selection and supervision
of the employee. 27
Indeed, this Court has consistently been of the view that it is for the better
protection of the public for both the owner of record and the actual operator to be
adjudged jointly and severally liable with the driver. 28 As aptly stated by the appellate
court, "the principle of holding the registered owner liable for damages notwithstanding
that ownership of the offending vehicle has already been transferred to another is
designed to protect the public and not as a shield on the part of unscrupulous transferees
of the vehicle to take refuge in, inorder to free itself from liability arising from its own
negligent act." 29
Hence, considering that the negligence of driver Gimena was su ciently proven by
the records of the case, and that no evidence of whatever nature was presented by
petitioner to support its defense of due diligence in the selection and supervision of its
employees, petitioner, as the employer of Gimena, may be held liable for damages arising
from the death of respondent Yu's wife.
WHEREFORE , premises considered, the instant petition is DENIED . The Decision
and Resolution, dated September 9, 2005 and August 8, 2006, respectively, of the Court of
Appeals in CA-G.R. CV No. 84175 are hereby AFFIRMED .
SO ORDERED. SDIaCT
Velasco, Jr., Del Castillo, * Villarama, Jr. and Reyes, JJ., concur.
Footnotes
* Designated Acting Member in lieu of Associate Justice Francis H. Jardeleza, per Special Order
No. 1934 dated February 11, 2015.
1. Penned by Associate Justice Rodrigo V. Cosico, with Associate Justices Rebecca De Guia-
Salvador and Arcangelita Romilla-Lontok concurring; rollo, pp. 23-30.
2. Id. at 32-33.
3. Id. at 136.
4. Id. at 24.
5. Id. at 137.
6. Penned by Presiding Judge Rebecca R. Mariano, id. at 136-140.
7. Id. at 140.
8. BA Finance Corp. v. Court of Appeals, G.R. No. 98275, November 13, 1992, 215 SCRA 715,
720.
9. Rollo, pp. 32-33.

10. Filipinas Synthetic Fiber Corporation v. De los Santos, et al., G.R. No. 152033, March 16,
2011, 645 SCRA 463, 468, citing Estacion v. Bernardo, 518 Phil. 388, 398 (2006), citing
Yambao v. Zuñiga, 463 Phil. 650, 657 (2003).
11. Lampesa v. De Vera, 569 Phil. 14, 20 (2008), citing Yambao v. Zuñiga, supra, at 657-658.
12. Philippine Health-Care Providers, Inc. (Maxicare) v. Estrada, 566 Phil. 603, 610 (2008), citing
Ilao-Quianay v. Mapile, 510 Phil. 736, 744-745 (2005); Fuentes v. Court of Appeals, 335
Phil. 1163, 1168-1169 (1997).
13. Philippine National Railways v. Court of Appeals, et al., 562 Phil. 141, 148 (2007), citing
Corliss v. The Manila Railroad Company, 137 Phil. 101, 107 (1969).
14. Philippine Hawk Corporation v. Vivian Tan Lee, 626 Phil. 483, 494 (2010), citing Achevara v.
Ramos, 617 Phil. 72, 85 (2009).
15. Pereña v. Zarate, G.R. No. 157917, August 29, 2012, 679 SCRA 209, 230, citing Layugan v.
Intermediate Appellate Court, 249 Phil. 363, 373 (1988), citing Black Law Dictionary, Fifth
Edition, p. 930.
16. Rollo, p. 8.
17. Id. at 103.
18. Article 2180 of the New Civil Code provides:
Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.
xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged
in any business or industry.
19. Lampesa v. De Vera, et al., supra note 11, at 20-21, citing Syki v. Begasa, 460 Phil. 381, 386
(2003).
20. 116 Phil. 478 (1962).
21. 105 Phil. 949 (1959).

22. 202 Phil. 715 (1982).
23. Jereos v. Court of Appeals, et al., supra, at 720-721. (Emphasis ours; citations omitted)
24. Tamayo v. Aquino, supra note 21, at 953. (Emphasis ours)
Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no
pre-existing contractual relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter. (1902a)
26. Supra note 17.
27. Rafael Reyes Trucking Corporation v. People of the Philippines, 386 Phil. 41, 57 (2000).
28. Zamboanga Transportation Company, Inc. v. Court of Appeals, 141 Phil. 406, 413 (1969),
citing the Decision of Court of Appeals Justice Fred Ruiz Castro, citing Dizon v. Octavio,
et al., 51 O.G. No. 8, 4059-4061; Castanares v. Pages, CA-G.R. 21809-R, March 8, 1962;
Redado v. Bautista, CA-G.R. 19295-R, Sept. 19, 1961; Bering v. Noeth, CA-G.R. 28483-R,
April 29, 1965.
29. Rollo, p. 29.

FIRST DIVISION
[G.R. No. L-40570. January 30, 1976.]
TEODORO C. UMALI , petitioner, vs. HON. ANGEL BACANI, in his capacity

as Presiding Judge of Branch IX of the Court of First Instance of
Pangasinan and FIDEL H. SAYNES , respondents.
Julian M. Armas for the petitioner.

Antonino de los Reyes for the private respondent.
SYNOPSIS
Defendant as owner and manager of the Alcala Electric Plant was ordered to pay
damages by the lower court which found the death by electrocution of a 3 year old boy
as due to defendant's fault or negligence. Petitioner claims that he could not be held
liable under the concept of quasi-delict or tort as owner and manager because the
proximate cause of the boy's death by electrocution could not be due to any negligence
on his part, but rather to a fortuitous event — the storm that caused the banana plants
to fall and cut the electric line — pointing out the absence of negligence on the part of
his employee who tried to have the line repaired and the presence of negligence of the
parents of the child in allowing him to leave his house during that time. The Supreme
Court found that a series of negligence on the part of the defendant's employee
resulted in the death of the victim by electrocution, to wit: the defendant did not cut
down the banana plants which are taller than the electric posts to eliminate that source
of danger to the electric line; that after the storm they did not cut off the ow of
electricity from the lines pending inspection of the wires to see if they had been cut;
and lastly, in not taking precautions to prevent anybody from approaching the live
wires.
Decision affirmed.
SYLLABUS
1. DAMAGES; QUASI-DELICT; NEGLIGENCE. — Art. 2179 of the Civil Code

provides that if the negligence of the plaintiff was only contributory, the immediate and
proximate cause of the injury being the defendant's lack of care, the plaintiff may
recover damages, but the court shall mitigate the damages to be awarded. This law
may be availed of by the petitioner but does not exempt him from liability.
2. ID.; ID.; ID.; EMPLOYER AND EMPLOYEE; NEGLIGENCE OF EMPLOYEE IS
PRESUMED TO BE THE NEGLIGENCE OF EMPLOYER. — The negligence of the
employee is presumed to be negligence of the employer because the employer is
supposed to exercise supervision over the work of the employee. The liability of the
employer is primary and direct. In fact the proper defense for the employer to raise so
that he may escape liability is to prove that he exercised the diligence of the good
father of the family to prevent damage not only in the selection of his employees but
also in adequately supervising them over their work.
DECISION
ESGUERRA , J : p
Petition for certiorari to review the decision of the Court of First Instance of
Pangasinan, Branch IX, in Civil Case No. U-2412, entitled, "Fidel H. Saynes, plaintiff-
appellee versus Teodoro C. Umali, defendant-appellant", which found the death by
electrocution of Manuel Saynes, a boy of 3 years and 8 months, as "due to the fault or
negligence of the defendant (Umali) as owner and manager of the Alcala Electric Plant;
although the liability of defendant is mitigated by contributory negligence of the
parents of the boy "in not providing for the proper and adequate supervision and
control over their son." The dispositive part of the decision reads as follows: cdrep
"Wherefore, the Court hereby renders judgment in favor of the

plaintiff by ordering the defendant to pay to the plaintiff the sum of
Five Thousand Pesos (P5,000.00) for the death of his son, Manuel
Saynes; the sum of One Thousand Two Hundred Pesos (P1,200.00)
for actual expenses for and in connection with the burial of said
deceased child, and the further sum of Three Thousand Pesos
(P3,000.00) for moral damages and Five Hundred (P500.00) Pesos as
reasonable attorney's fee, or a total of Nine Thousand Seven Hundred
(P9,700.00) Pesos, and to pay the costs of this suit. It Is So Ordered."
Undisputed facts appearing of record are:
"On May 14, 1972, a storm with strong rain hit the Municipality
of Alcala, Pangasinan, which started from 2:00 o'clock in the
afternoon and lasted up to about midnight of the same day. During
the storm, the banana plants standing on an elevated ground along
the barrio road in San Pedro Ili of said municipality and near the
transmission line of the Alcala Electric Plant were blown down and
fell on the electric wire. As a result, the live electric wire was cut, one
end of which was left hanging on the electric post and the other fell to
the ground under the fallen banana plants.
"On the following morning, at about 9:00 o'clock barrio captain
Luciano Bueno of San Pedro Ili who was passing by saw the broken
electric wire and so he warned the people in the place not to go near
the wire for they might get hurt. He also saw Cipriano Baldomero, a
laborer of the Alcala Electric Plant near the place and noti ed him
right then and there of the broken line and asked him to x it, but the
latter told the barrio captain that he could not do it but that he was
going to look for the lineman to fix it.
"Sometime after the barrio captain and Cipriano Baldomero
had left the place, a small boy of 3 years and 8 months old by the
name of Manuel P. Saynes, whose house is just on the opposite side
of the road, went to the place where the broken line wire was and got
in contact with it. The boy was electrocuted and he subsequently
died. It was only after the electrocution of Manuel Saynes that the
broken wire was xed at about 10:00 o'clock on the same morning by
the lineman of the electric plant."
Petitioner claims that he could not be liable under the concept of quasi-delict or
tort as owner and manager of the Alcala Electric Plant because the proximate cause of
the boy's death by electrocution could not be due to any negligence on his part, but
rather to a fortuitous event — the storm that caused the banana plants to fall and cut
the electric line — pointing out the absence of negligence on the part of his employee
Cipriano Baldomero who tried to have the line repaired and the presence of negligence
of the parents of the child in allowing him to leave his house during that time.prLL
A careful examination of the record convinces Us that a series of negligence on

the part of defendant's employees in the Alcala Electric Plant resulted in the death of
the victim by electrocution. First, by the very evidence of the defendant, there were big
and tall banana plants at the place of the incident standing on an elevated ground which
were about 30 feet high and which were higher than the electric post supporting the
electric line, and yet the employees of the defendant who, with ordinary foresight, could
have easily seen that even in case of moderate winds the electric line would be
endangered by banana plants being blown down, did not even take the necessary
precaution to eliminate that source of danger to the electric line. Second, even after the
employees of the Alcala Electric Plant were already aware of the possible damage the
storm of May 14, 1972, could have caused their electric lines, thus becoming a possible
threat to life and property, they did not cut off from the plant the ow of electricity
along the lines, an act they could have easily done pending inspection of the wires to
see if they had been cut. Third, employee Cipriano Baldomero was negligent on the
morning of the incident because even if he was already made aware of the live cut wire,
he did not have the foresight to realize that the same posed a danger to life and
property, and that he should have taken the necessary precaution to prevent anybody
from approaching the live wire; instead Baldomero left the premises because what was
foremost in his mind was the repair of the line, obviously forgetting that if left
unattended to it could endanger life and property.
On defendant's argument that the proximate cause of the victim's death could be
attributed to the parents' negligence in allowing a child of tender age to go out of the
house alone, We could readily see that because of the aforementioned series of
negligence on the part of defendants' employees resulting in a live wire lying on the
premises without any visible warning of its lethal character, anybody, even a
responsible grown up or not necessarily an innocent child, could have met the same
fate that befell the victim. It may be true, as the lower Court found out, that the
contributory negligence of the victim's parents in not properly taking care of the child,
which enabled him to leave the house alone on the morning of the incident and go to a
nearby place (cut wire was very near the house where victim was living) where the fatal
fallen wire electrocuted him, might mitigate respondent's liability, but We cannot agree
with petitioner's theory that the parents' negligence constituted the proximate cause of
the victim's death because the real proximate cause was the fallen live wire which
posed a threat to life and property on that morning due to the series of negligence
adverted to above committed by defendants' employees and which could have killed
any other person who might by accident get into contact with it. Stated otherwise, even
if the child was allowed to leave the house unattended due to the parents' negligence,
he would not have died that morning where it not for the cut live wire he accidentally
touched. cdphil
Art. 2179 of the Civil Code provides that if the negligence of the plaintiff (parents
of the victim in this case) was only contributory, the immediate and proximate cause of
the injury being the defendants' lack of due care, the plaintiff may recover damages, but
the courts shall mitigate the damages to be awarded. This law may be availed of by the
petitioner but does not exempt him from liability.
Petitioner's liability for injury caused by his employees' negligence is well de ned
in par. 4, of Article 2180 of the Civil Code, which states:
"The owner and manager of the establishment or enterprise are
likewise responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on the
occasion of their functions."
The negligence of the employee is presumed to be the negligence of the
employer because the employer is supposed to exercise supervision over the work of
the employees. This liability of the employer is primary and direct (Standard Vacuum Oil
Co. vs. Tan and Court of Appeals, 107 Phil. 109). In fact the proper defense for the
employer to raise so that he may escape liability is to prove that he exercised the
diligence of the good father of the family to prevent damage not only in the selection of
his employees but also in adequately supervising them over their work. This defense
was not adequately proven as found by the trial Court, and We do not nd any su cient
reason to deviate from its finding.
Notwithstanding diligent efforts, We fail to find any reversible error committed by
the trial Court in this case, either in its appreciation of the evidence on questions of
facts or on the interpretation and application of laws governing quasi-delicts and
liabilities emanating therefrom. The inevitable conclusion is that no error amounting to
grave abuse of discretion was committed and the decision must be left untouched.
WHEREFORE, the decision of respondent Court dated June 27, 1974 is affirmed.
Costs against petitioner.
SO ORDERED.
Teehankee (Chairman), Makasiar, Muñoz Palma and Martin, JJ., concur.

THIRD DIVISION
[G.R. No. 161803. February 4, 2008.]
DY TEBAN TRADING, INC. , petitioner, vs . JOSE CHING AND/OR

LIBERTY FOREST, INC. and CRESILITO M. LIMBAGA , respondents.
DECISION
REYES, R.T., J : p
THE vehicular collision resulting in damages and injuries in this case could have
been avoided if the stalled prime mover with trailer were parked properly and equipped
with an early warning device. It is high time We sounded the call for strict enforcement
of the law and regulation on tra c and vehicle registration. Panahon na para
mahigpit na ipatupad ang batas at regulasyon sa trapiko at pagpapatala ng
sasakyan.
Before Us is a petition for review on certiorari of the Decision 1 of the Court of
Appeals (CA) modifying that 2 of the Regional Trial Court (RTC) in Butuan City nding
private respondents Liberty Forest, Inc. and Cresilito Limbaga liable to petitioner Dy
Teban Trading, Inc. for damages.
Facts
On July 4, 1995, at around 4:45 a.m., Rogelio Ortiz, with helper Romeo Catamora,
was driving a Nissan van owned by petitioner Dy Teban Trading, Inc. along the National
Highway in Barangay Sumilihon, Butuan City, going to Surigao City. They were delivering
commercial ice to nearby barangays and municipalities. A Joana Paula passenger bus
was cruising on the opposite lane towards the van. In between the two vehicles was a
parked prime mover with a trailer, owned by private respondent Liberty Forest, Inc. 3
The night before, at around 10:00 p.m., the prime mover with trailer suffered a
tire blowout. The driver, private respondent Cresilito Limbaga, parked the prime mover
askew occupying a substantial portion of the national highway, on the lane of the
passenger bus. He parked the prime mover with trailer at the shoulder of the road with
the left wheels still on the cemented highway and the right wheels on the sand and
gravel shoulder of the highway. 4 The prime mover was not equipped with triangular,
collapsible re ectorized plates, the early warning device required under Letter of
Instruction No. 229. As substitute, Limbaga placed a banana trunk with leaves on the
front and the rear portion of the prime mover to warn incoming motorists. It is alleged
that Limbaga likewise placed kerosene lighted tin cans on the front and rear of the
trailer. 5
To avoid hitting the parked prime mover occupying its lane, the incoming
passenger bus swerved to the right, onto the lane of the approaching Nissan van. Ortiz
saw two bright and glaring headlights and the approaching passenger bus. He pumped
his break slowly, swerved to the left to avoid the oncoming bus but the van hit the front
of the stationary prime mover. The passenger bus hit the rear of the prime mover. 6
Ortiz and Catamora only suffered minor injuries. The Nissan van, however,
became inoperable as a result of the incident. After the collision, SPO4 Teo lo Pame
conducted an investigation and submitted a police tra c incident investigation report.
7
On October 31, 1995, petitioner Nissan van owner led a complaint for damages
8 against private respondents prime mover owner and driver with the RTC in Butuan
City. The Joana Paula passenger bus was not impleaded as defendant in the complaint.
RTC Disposition
On August 7, 2001, the RTC rendered a decision in favor of petitioner Dy Teban
Trading, Inc. with a fallo reading:
WHEREFORE, judgment is hereby rendered directing, ordaining and
ordering:
a) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga pay,

jointly and solidarily, plaintiff Dy Teban Trading, Inc. the amounts of
P279,832.00 as actual and compensatory damages, P30,000.00 as
attorney's fees and P5,000.00 as expenses of litigation;
b) That all money claims of plaintiff Rogelio C. Ortiz are dismissed;
c) That defendant Jose Ching is absolved from any civil liability or the
case against him dismissed;
d) That the counterclaim of all the defendants is dismissed; and

e) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga to
pay, jointly and solidarily, the costs.
SO ORDERED. 9
The RTC held that the proximate cause of the three-way vehicular collision was
improper parking of the prime mover on the national highway and the absence of an
early warning device on the vehicle, thus:
The court nds that the proximate cause of the incidents is the
negligence and carelessness attributable to the defendants. When the trailer
being pulled by the prime mover suffered two (2) at tires at Sumilihon, the
prime mover and trailer were parked haphazardly, as the right tires of the prime
mover were the only ones on the sand and gravel shoulder of the highway while
the left tires and all the tires of the trailer were on the cemented pavement of the
highway, occupying almost the whole of the right lane on the direction the prime
mover and trailer were traveling. The statement of Limbaga that he could not
park the prime mover and trailer deeper into the sand and gravel shoulder of the
highway to his right because there were banana plants is contradicted by the
picture marked Exhibit "F." The picture shows that there was ample space on the
shoulder. If defendant Limbaga was careful and prudent enough, he should
have the prime mover and trailer traveled more distance forward so that the
bodies of the prime mover and trailer would be far more on the shoulder rather
than on the cemented highway when they were parked. . . . The court has some
doubts on the statement of witness-driver Limbaga that there were banana
trunks with leaves and lighted tin cans with crude oil placed 3 strides in front of
the prime mover and behind the trailer because the testimonies of witnesses
Rogelio C. Ortiz, driver of the ice van, Romeo D. Catamora, helper of the ice van,
and Police Tra c Investigator SPO3 Teo lo M. Pame show that there were no
banana trunks with leaves and lighted tin cans at the scene of the incident. But
even assuming that there were banana trunks with leaves but they were placed
close to the prime mover and trailer as they were placed 3 strides away which to
the mind of the court is equivalent approximately to 3 meters and with this
distance, approaching vehicles would have no su cient time and space to
make a complete stop, especially if the vehicles are heavy and loaded. If there
were lighted tin cans, it was not explained by the defendants why the driver,
especially driver witness Ortiz, did not see them.
xxx xxx xxx
Defendant Liberty Forest, Inc. did not exercise the diligence of a good
father of a family in managing and running its business. The evidence on record
shows that it failed to provide its prime mover and trailer with the required "early
warning devices" with re ectors and it did not keep proper maintenance and
condition of the prime mover and the trailer. The circumstances show that the
trailer were provided with wornout tires and with only one (1) piece of spare tire.
The pictures marked Exhibit "3" and "4" show that two (2) at tires suffered by
the trailer and these two (2) tires were attached to one of the two (2) I-beams or
axles attached to the rear of the trailer which axle is very near but behind the
other axle and with the location of the 2 I-beams, it would have the other I-beam
that would have suffered the at tires as it has to bear the brunt of weight of the
D-8 bulldozer. The bulldozer was not loaded directly above the two (2) I-beams
as 2 I-beams, as a pair, were attached at the far rear end of the trailer.
xxx xxx xxx
However, defendant Jose Ching should be absolved of any liability as there

is no showing that he is the manager or CEO of defendant Liberty Forest, Inc.
Although in the answer, it is admitted that he is an o cer of the defendant
corporation, but it is not clari ed what kind of position he is holding, as he could
be an o cer as one of the members of the Board of Directors or a cashier and
treasurer of the corporation. Witness Limbaga in his testimony mentioned a
certain Boy Ching as the Manager but it was never clari ed whether or not Boy
Ching and defendant Jose Ching is one and the same person. 1 0
Private respondents appealed to the CA.

CA Disposition
On August 28, 2003, the CA reversed the RTC decision, disposing as follows:
WHEREFORE , premises considered, the decision dated August 7, 2001
of the Regional Trial Court, Branch 2, Butuan City in Civil Case No. 4360 is
hereby PARTLY MODIFIED by absolving the defendants-appellants/appellees
of any liability to plaintiffs-appellants/appellees by reason of the incident on
July 4, 1995.
The dismissal of the case against Jose Ching, the counterclaim of
defendants-appellants/appellees and the money claim of Rogelio Ortiz
STANDS .
SO ORDERED . 1 1
In partly reversing or partly modifying the RTC decision, the CA held that the
proximate cause of the vehicular collision was the failure of the Nissan van to give way
or yield to the right of way of the passenger bus, thus:
It was stated that the Joana Paula bus in trying to avoid a head-on
collision with the truck, sideswept the parked trailer loaded with bulldozer.

Evidently, the driver of the Joana Paula bus was aware of the presence
on its lane of the parked trailer with bulldozer. For this reason, it proceeded to
occupy what was left of its lane and part of the opposite lane. The truck
occupying the opposite lane failed to give way or yield the right of way to the
oncoming bus by proceeding with the same speed. The two vehicles were, in
effect, trying to beat each other in occupying a single lane. The bus was the rst
to occupy the said lane but upon realizing that the truck refused to give way or
yield the right of way, the bus, as a precaution, geared to its right where the
trailer was parked. Unfortunately, the bus miscalculated its distance from the
parked trailer and its rear right side hit the protruding blade of the bulldozer then
on the top of the parked trailer. The impact of the collision on its right rear side
with the blade of the bulldozer threw the bus further to the opposite lane,
landing its rear portion on the shoulder of the opposite lane.
xxx xxx xxx

Facts of the case reveal that when Ortiz, the driver of the truck, failed to
give the Joana Paula bus the space on the road it needed, the latter vehicle
scraped its rear right side on the protruded bulldozer blade and the impact threw
the bus directly on the path of the oncoming truck. This made plaintiffs-
appellants/appellees conclude that the Joana Paula bus occupied its lane
which forced Ortiz, the driver of the truck, to swerve to its left and ram the front
of the parked trailer.
xxx xxx xxx
The trailer was parked because its two (2) rear-left tires were blown out.
With a bulldozer on top of the trailer and two (2) busted tires, it would be
dangerous and quite impossible for the trailer to further park on the graveled
shoulder of the road. To do so will cause the at car to tilt and may cause the
bulldozer to fall from where it was mounted. In fact, it appeared that the driver
of the trailer tried its best to park on the graveled shoulder since the right-front
tires were on the graveled shoulder of the road.
The lower court erred in stating that the Joana Paula bus swerved to the
left of the truck because it did not see the parked trailer due to lack of warning
sign of danger of any kind that can be seen from a distance. The damage
suffered by the Joana Paula bus belied this assessment. As stated before, the
Joana Paula bus, with the intention of passing rst which it did, rst
approached the space beside the parked trailer, veered too close to the parked
trailer thereby hitting its rear right side on the protruding bulldozer blade. Since
the damage was on the rear right most of the bus, it was clearly on the space
which was wide enough for a single passing vehicle but not su cient for two
(2) passing vehicles. The bus was thrown right to the path of the truck by the
impact of the collision of its rear right side with the bulldozer blade. 1 2
The CA disagreed with the RTC that the prime mover did not have an early
warning device. The appellate court accepted the claim of private respondent that
Limbaga placed kerosene lighted tin cans on the front and rear of the trailer which, in
Baliwag Transit, Inc. v. Court of Appeals , 1 3 may act as substitute early warning device.
The CA stated:
Likewise, it was incorrect for the lower court to state that there was no
warning sign of danger of any kind, most probably referring to the absence of
the triangular re ectorized plates. The police sketch clearly indicated the stack
of banana leaves placed at the rear of the parked trailer. The trailer's driver
testi ed that they placed kerosene lighted tin can at the back of the parked
trailer.
A pair of triangular re ectorized plates is not the only early warning
device allowed by law. The Supreme Court (in Baliwag Transit, Inc. v. Court of
Appeals) held that:
". . . Col. dela Cruz and Romano testi ed that they did not see any
early warning device at the scene of the accident. They were referring to
the triangular re ectorized plates in red and yellow issued by the Land
Transportation O ce. However, the evidence shows that Recontique and
Ecala placed a kerosene lamp or torch at the edge of the road, near the rear
portion of the truck to serve as an early warning device. This substantially
complies with Section 34 (g) of the Land Transportation and Tra c Code .
..
Baliwag's argument that the kerosene lamp or torch does not

substantially comply with the law is untenable. The aforequoted law
clearly allows the use not only of an early warning device of the triangular
re ectorized plates' variety but also parking lights or ares visible one
hundred meters away. . . . ."
This Court holds that the defendants-appellants/appellees were not
negligent in parking the trailer on the scene of the accident. It would have been
different if there was only one at tire and defendant-appellant/appellee
Limbaga failed to change the same and left immediately.
As such, defendants-appellants/appellees are not liable for the damages
suffered by plaintiffs-appellants/appellees. Whatever damage plaintiffs-
appellants/appellees suffered, they alone must bear them. 1 4
Issues
Petitioner raises two issues 1 5 for Our consideration, to wit:
I.
THE HONORABLE COURT OF APPEALS, WITHOUT ANY AVAILABLE CONCRETE
EVIDENCE, ERRONEOUSLY DETERMINED THAT THERE WERE EARLY WARNING
DEVICES PLACED IN FRONT OF THE DEFENDANT-APPELLANTS/APPELLEES'
TRUCK AND FLAT CAR TO WARN PLAINTIFF-APPELLANT/APPELLEE ROGELIO
ORTIZ OF THEIR PRESENCE.
II.
WITH DUE RESPECT, IT IS HIGH TIME TO ENFORCE THE LAW ON EARLY
WARNING DEVICES IN THE PUBLIC INTEREST.
Our Ruling
The petition is meritorious.
The meat of the petition is whether or not the prime mover is liable for the
damages suffered by the Nissan van. The RTC ruled in the a rmative holding that the
proximate cause of the vehicular collision was the negligence of Limbaga in parking the
prime mover on the national highway without an early warning device on the vehicle. The
CA reversed the RTC decision, holding that the proximate cause of the collision was the
negligence of Ortiz in not yielding to the right of way of the passenger bus.

Article 2176 of the Civil Code provides that whoever by act or omission causes
damage to another, there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing contractual relation between
the parties, is called a quasi-delict. To sustain a claim based on quasi-delict, the
following requisites must concur: (a) damage suffered by plaintiff; (b) fault or
negligence of defendant; and (c) connection of cause and effect between the fault or
negligence of defendant and the damage incurred by plaintiff. 1 6
There is no dispute that the Nissan van suffered damage. That is borne by the
records and conceded by the parties. The outstanding issues are negligence and
proximate cause. Tersely put, the twin issues are: (a) whether or not prime mover driver
Limbaga was negligent in parking the vehicle; and (b) whether or not his negligence was
the proximate cause of the damage to the Nissan van.
Limbaga was negligent in parking
the prime mover on the national
highway; he failed to prevent or
minimize the risk to oncoming
motorists .
Negligence is de ned as the failure to observe for the protection of the interests
of another person that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury. 1 7 The
Supreme Court stated the test of negligence in the landmark case Picart v. Smith 1 8 as
follows:
The test by which to determine the existence or negligence in a particular
case may be stated as follows: Did the defendant in doing the alleged negligent
act use that reasonable care and caution which an ordinary person would have
used in the same situation? If not, then he is guilty of negligence. The law here
in effect adopts the standard supposed to be supplied by the imaginary conduct
of the discreet paterfamilias of the Roman law. The existence of negligence in a
given case is not determined by reference to the personal judgment of the actor
in the situation before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and prudence and
determines liability by that. (Underscoring supplied)
The test of negligence is objective. We measure the act or omission of the
tortfeasor with that of an ordinary reasonable person in the same situation. The test, as
applied to this case, is whether Limbaga, in parking the prime mover, used that
reasonable care and caution which an ordinary reasonable person would have used in
the same situation.
We nd that Limbaga was utterly negligent in parking the prime mover askew on
the right side of the national highway. The vehicle occupied a substantial portion of the
national road on the lane of the passenger bus. It was parked at the shoulder of the
road with its left wheels still on the cemented highway and the right wheels on the sand
and gravel shoulder of the highway. It is common sense that the skewed parking of the
prime mover on the national road posed a serious risk to oncoming motorists. It was
incumbent upon Limbaga to take some measures to prevent that risk, or at least
minimize it.
We are unable to agree with the CA conclusion "it would have been dangerous
and quite impossible to further park the prime mover on the graveled shoulder of the
road because the prime mover may tilt and the bulldozer may fall off." The photographs
taken after the incident show that it could have been possible for Limbaga to park the
prime mover completely on the shoulder of the national road without risk to oncoming
motorists. We agree with the RTC observation on this point, thus:
. . . The statement of Limbaga that he could not park the prime mover
and trailer deeper into the sand and gravel shoulder of the highway to his right
because there were banana plants is contradicted by the picture marked Exhibit
"F." The picture shows that there was ample space on the shoulder. If defendant
Limbaga was careful and prudent enough, he should have the prime mover and
trailer traveled more distance forward so that the bodies of the prime mover and
trailer would be far more on the shoulder rather than on the cemented highway
when they were parked. Although at the time of the incident, it was about 4:45 in
the morning and it was drizzling but there is showing that it was pitch dark that
whoever travels along the highway must be extra careful. If the Joana Paula
bus swerved to the lane on which the "Nissan" ice van was properly traveling, as
prescribed by Tra c Rules and Regulations, it is because the driver of the bus
did not see at a distance the parked prime mover and trailer on the bus' proper
lane because there was no warning signs of danger of any kind that can be
seen from a distance. 1 9
Limbaga also failed to take proper steps to minimize the risk posed by the
improperly parked prime mover. He did not immediately inform his employer, private
respondent Liberty Forest, Inc., that the prime mover suffered two tire blowouts and
that he could not have them xed because he had only one spare tire. Instead of calling
for help, Limbaga took it upon himself to simply place banana leaves on the front and
rear of the prime mover to serve as warning to oncoming motorists. Worse, Limbaga
slept on the prime mover instead of standing guard beside the vehicle. By his own
account, Limbaga was sleeping on the prime mover at the time of the collision and that
he was only awakened by the impact of the Nissan van and the passenger bus on the
prime mover. 2 0
Limbaga also admitted on cross-examination that it was his rst time to drive
the prime mover with trailer loaded with a D-8 caterpillar bulldozer. 2 1 We nd that
private respondent Liberty Forest, Inc. was utterly negligent in allowing a novice driver,
like Limbaga, to operate a vehicle, such as a truck loaded with a bulldozer, which
required highly specialized driving skills. Respondent employer clearly failed to properly
supervise Limbaga in driving the prime mover.
The RTC noted that private respondent Liberty Forest, Inc. also failed to keep the
prime mover in proper condition at the time of the collision. The prime mover had worn
out tires. It was only equipped with one spare tire. It was for this reason that Limbaga
was unable to change the two blown out tires because he had only one spare. The
bulldozer was not even loaded properly on the prime mover, which caused the tire
blowouts.
All told, We agree with the RTC that private respondent Limbaga was negligent in
parking the prime mover on the national highway. Private respondent Liberty Forest,
Inc. was also negligent in failing to supervise Limbaga and in ensuring that the prime
mover was in proper condition.
The case of Baliwag Transit, Inc. v.
Court of Appeals is inapplicable;
Limbaga did not put lighted kerosene
tin cans on the front and rear of the
prime mover .
Anent the absence of an early warning device on the prime mover, the CA erred in
accepting the bare testimony of Limbaga that he placed kerosene lighted tin cans on
the front and rear of the prime mover. The evidence on records belies such claim. The
CA reliance on Baliwag Transit, Inc. v. Court of Appeals 2 2 as authority for the
proposition that kerosene lighted tin cans may act as substitute early warning device is
misplaced.
First , the tra c incident report did not mention any lighted tin cans on the prime
mover or within the immediate vicinity of the accident. Only banana leaves were placed
on the prime mover. The report reads:
VIII — RESULT OF INVESTIGATION: A Joana Paula Bus, with Body No.
7788, with Plate No. LVA-137, driven by one Temestocles Relova v. Antero , of
legal age, married and a resident of San Roque, Kitcharao, Agusan del Norte,
while traveling along the National Highway, coming from the east going to the
west direction, as it moves along the way and upon reaching Brgy. Sumilihon,
Butuan City to evade bumping to the approaching Nissan Ice Van with Plate No.
PNT-247, driven by one Rogelio Cortez y Ceneza. As the result, the Joana Paula
Bus accidentally busideswept (sic) to the parked Prime Mover with Trailer
loaded with Bulldozer without early warning device , instead placing only dry
banana leaves three (3) meters at the rear portion of the Trailer, while failure to
place at the front portion, and the said vehicle occupied the whole lane. As the
result, the Joana Paula Bus hit to the left edge blade of the Bulldozer. Thus,
causing the said bus swept to the narrow shouldering, removing the rear four (4)
wheels including the differential and injuring the above-stated twelve (12)
passengers and damaged to the right side fender above the rear wheel. Thus,
causing damage on it. While the Nissan Ice Van in evading, accidentally
swerved to the left lane and accidentally bumped to the front bumper of the
parked Prime Mover with Trailer loaded with Bulldozer. Thus, causing heavy
damage to said Nissan Ice Van including the cargoes of the said van. 2 3
Second , SPO4 Pame, who investigated the collision, testi ed 2 4 that only banana
leaves were placed on the front and rear of the prime mover. He did not see any lighted
tin cans in the immediate vicinity of the collision.
Third , the claim of Limbaga that he placed lighted tin cans on the front and rear
of the prime mover belatedly surfaced only during his direct examination. No allegation
to this effect was made by private respondents in their Answer to the complaint for
damages. Petitioner's counsel promptly objected to the testimony of Limbaga, thus:
ATTY. ROSALES:
Q. Now you mentioned about placing some word signs in front and at the
rear of the prime mover with trailer, will you please describe to us what this
word signs are?
A. We placed a piece of cloth on tin cans and lled them with crude oil.
And these tin cans were lighted and they are like torches. These two lights
or torches were placed in front and at the rear side of the prime mover with
trailer. After each torch, we placed banana trunk . The banana trunk is
placed between the two (2) torches and the prime mover, both on the rear
and on the front portion of the prime mover.
Q. How far was the lighted tin cans with wick placed in front of the prime
mover.

ATTY. ASIS:
At this point, we will be objecting to questions particularly referring to the
alleged tin cans as some of the warning-sign devices, considering that
there is no allegation to that effect in the answer of the defendants. The
answer was just limited to the numbers 4 & 5 of the answer. And, therefore,
if we follow the rule of the binding effect of an allegation in the complaint,
then the party will not be allowed to introduce evidence to attack jointly or
rather the same, paragraph 5 states, warning device consisting of 3
banana trunks, banana items and leaves were led. He can be cross-
examined in the point, Your Honor.
COURT:
Q. Put that on record that as far as this tin cans are concerned, the plaintiffs
are interposing continuing objections. But the Court will allow the question.
25
We thus agree with the RTC that Limbaga did not place lighted tin cans on the
front and rear of the prime mover. We give more credence to the tra c incident report
and the testimony of SPO4 Pame that only banana leaves were placed on the vehicle.
Baliwag Transit, Inc. v. Court of Appeals 2 6 thus finds no application to the case at bar.
The skewed parking of the prime
mover was the proximate cause of
the collision .
Proximate cause is de ned as that cause, which, in natural and continuous
sequence, unbroken by any e cient intervening cause, produces the injury, and without
which the result would not have occurred. More comprehensively, proximate cause is
that cause acting rst and producing the injury, either immediately or by setting other
events in motion, all constituting a natural and continuous chain of events, each having a
close causal connection with its immediate predecessor, the nal event in the chain
immediately effecting the injury as natural and probable result of the cause which rst
acted, under such circumstances that the person responsible for the rst event should,
as an ordinarily prudent and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might probably result
therefrom. 2 7
There is no exact mathematical formula to determine proximate cause. It is
based upon mixed considerations of logic, common sense, policy and precedent. 2 8
Plaintiff must, however, establish a su cient link between the act or omission and the
damage or injury. That link must not be remote or far-fetched; otherwise, no liability will
attach. The damage or injury must be a natural and probable result of the act or
omission. In the precedent-setting Vda. de Bataclan v. Medina , 2 9 this Court discussed
the necessary link that must be established between the act or omission and the
damage or injury, viz.:
It may be that ordinarily, when a passenger bus overturns, and pins down
a passenger, merely causing him physical injuries, if through some event,
unexpected and extraordinary, the overturned bus is set on re, say, by lightning,
or if some highwaymen after looting the vehicle sets it on re, and the
passenger is burned to death, one might still contend that the proximate cause
of his death was the re and not the overturning of the vehicle. But in the
present case and under the circumstances obtaining in the same, we do not
hesitate to hold that the proximate cause of the death of Bataclan was the
overturning of the bus, this for the reason that when the vehicle turned not only
on its side but completely on its back, the leaking of the gasoline from the tank
was not unnatural or unexpected; that the coming of the men with a lighted
torch was in response to the call for help, made not only by the passengers, but
most probably, by the driver and the conductor themselves, and that because it
was very dark (about 2:30 in the morning), the rescuers had to carry a light with
them; and coming as they did from a rural area where lanterns and ashlights
were not available, they had to use a torch, the most handy and available; and
what was more natural than that said rescuers should innocently approach the
overturned vehicle to extend the aid and effect the rescue requested from them.
In other words, the coming of the men with the torch was to be expected and
was natural sequence of the overturning of the bus, the trapping of some of its
passengers' bus, the trapping of some of its passengers and the call for outside
help.
The ruling in Bataclan has been repeatedly cited in subsequent cases as authority
for the proposition that the damage or injury must be a natural or probable result of the
act or omission. Here, We agree with the RTC that the damage caused to the Nissan van
was a natural and probable result of the improper parking of the prime mover with
trailer. As discussed, the skewed parking of the prime mover posed a serious risk to
oncoming motorists. Limbaga failed to prevent or minimize that risk. The skewed
parking of the prime mover triggered the series of events that led to the collision,
particularly the swerving of the passenger bus and the Nissan van.
Private respondents Liberty Forest, Inc. and Limbaga are liable for all damages
that resulted from the skewed parking of the prime mover. Their liability includes those
damages resulting from precautionary measures taken by other motorist in trying to
avoid collision with the parked prime mover. As We see it, the passenger bus swerved
to the right, onto the lane of the Nissan van, to avoid colliding with the improperly
parked prime mover. The driver of the Nissan van, Ortiz, reacted swiftly by swerving to
the left, onto the lane of the passenger bus, hitting the parked prime mover. Ortiz
obviously would not have swerved if not for the passenger bus abruptly occupying his
van's lane. The passenger bus, in turn, would not have swerved to the lane of the Nissan
van if not for the prime mover improperly parked on its lane. The skewed parking is the
proximate cause of the damage to the Nissan van.
I n Phoenix Construction, Inc. v. Intermediate Appellate Court, 3 0 this Court held
that a similar vehicular collision was caused by the skewed parking of a dump truck on
the national road, thus:
The conclusion we draw from the factual circumstances outlined above
is that private respondent Dionisio was negligent the night of the accident. He
was hurrying home that night and driving faster than he should have been.
Worse, he extinguished his headlights at or near the intersection of General
Lacuna and General Santos Streets and thus did not see the dump truck that
was parked askew and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the
Intermediate Appellate Court that the legal and proximate cause of the accident
and of Dionisio's injuries was the wrongful or negligent manner in which the
dump truck was parked — in other words, the negligence of petitioner Carbonel.
That there was a reasonable relationship between petitioner Carbonel's
negligence on the one hand and the accident and respondent's injuries on the
other hand, is quite clear. Put in a slightly different manner, the collision of
Dionisio's car with the dump truck was a natural and foreseeable consequence
of the truck driver's negligence.
xxx xxx xxx
We believe, secondly, that the truck driver's negligence far from being a
"passive and static condition" was rather an indispensable and e cient cause.
The collision between the dump truck and the private respondent's car would in
all probability not have occurred had the dump truck not been parked askew
without any warning lights or re ector devices. The improper parking of the
dump truck created an unreasonable risk of injury for anyone driving down
General Lacuna Street and for having so created this risk, the truck driver must
be held responsible. In our view, Dionisio's negligence, although later in point of
time than the truck driver's negligence and, therefore, closer to the accident, was
not an e cient intervening or independent cause. What the Petitioner describes
as an "intervening cause" was no more than a foreseeable consequence of the
risk created by the negligent manner in which the truck driver had parked the
dump truck. In other words, the petitioner truck driver owed a duty to private
respondent Dionisio and others similarly situated not to impose upon them the
very risk the truck driver had created. Dionisio's negligence was not of an
independent and overpowering nature as to cut, as it were, the chain of
causation in fact between the improper parking of the dump truck and the
accident, nor to sever the juris vinculum of liability. . . . (Underscoring supplied)
We cannot rule on the proportionate
or contributory liability of the
passenger bus, if any, because it
was not a party to the case; joint
tortfeasors are solidarily liable .
The CA also faults the passenger bus for the vehicular collision. The appellate
court noted that the passenger bus was "aware" of the presence of the prime mover on
its lane, but it still proceeded to occupy the lane of the Nissan van. The passenger bus
also miscalculated its distance from the prime mover when it hit the vehicle.
We cannot de nitively rule on the proportionate or contributory liability of the
Joana Paula passenger bus vis-à-vis the prime mover because it was not a party to the
complaint for damages. Due process dictates that the passenger bus must be given an
opportunity to present its own version of events before it can be held liable. Any
contributory or proportionate liability of the passenger bus must be litigated in a
separate action, barring any defense of prescription or laches. Insofar as petitioner is
concerned, the proximate cause of the collision was the improper parking of the prime
mover. It was the improper parking of the prime mover which set in motion the series
of events that led to the vehicular collision.
Even granting that the passenger bus was at fault, it's fault will not necessarily
absolve private respondents from liability. If at fault, the passenger bus will be a joint
tortfeasor along with private respondents. The liability of joint tortfeasors is joint and
solidary. This means that petitioner may hold either of them liable for damages from
the collision. In Philippine National Construction Corporation v. Court of Appeals , 3 1 this
Court held:
According to the great weight of authority, where the concurrent or
successive negligent acts or omission of two or more persons, although acting
independently of each other, are, in combination, the direct and proximate cause
of a single injury to a third person and it is impossible to determine in what
proportion each contributed to the injury, either is responsible for the whole
injury, even though his act alone might not have caused the entire injury, or the
same damage might have resulted from the acts of the other tort-feasor . . . .
In Far Eastern Shipping Company v. Court of Appeals , the Court declared that the
liability of joint tortfeasors is joint and solidary, to wit:
It may be said, as a general rule, that negligence in order to render a
person liable need not be the sole cause of an injury. It is su cient that his
negligence, concurring with one or more e cient causes other than plaintiff's, is
the proximate cause of the injury. Accordingly, where several causes combine to
produce injuries, a person is not relieved from liability because he is responsible
for only one of them, it being su cient that the negligence of the person
charged with injury is an efficient cause without which the injury would not have
resulted to as great an extent, and that such cause is not attributable to the
person injured. It is no defense to one of the concurrent tortfeasors that the
injury would not have resulted from his negligence alone, without the negligence
or wrongful acts of the other concurrent tortfeasors. Where several causes
producing an injury are concurrent and each is an e cient cause without which
the injury would not have happened, the injury may be attributed to all or any of
the causes and recovery may be had against any or all of the responsible
persons although under the circumstances of the case, it may appear that one
of them was more culpable, and that the duty owed by them to the injured
person was not the same. No actor's negligence ceases to be a proximate cause
merely because it does not exceed the negligence of other actors. Each
wrongdoer is responsible for the entire result and is liable as though his acts
were the sole cause of the injury.
There is no contribution between joint tortfeasors whose liability is
solidary since both of them are liable for the total damage. Where the
concurrent or successive negligent acts or omissions of two or more persons,
although acting independently, are in combination with the direct and proximate
cause of a single injury to a third person, it is impossible to determine in what
proportion each contributed to the injury and either of them is responsible for
the whole injury. Where their concurring negligence resulted in injury or damage
to a third party, they become joint tortfeasors and are solidarily liable for the
resulting damage under Article 2194 of the Civil Code. (Underscoring supplied)
All told, all the elements of quasi delict have been proven by clear and convincing
evidence. The CA erred in absolving private respondents from liability for the vehicular
collision.
Final Note
It is lamentable that the vehicular collision in this case could have been easily
avoided by following basic tra c rules and regulations and road safety standards. In
hindsight, private respondent Limbaga could have prevented the three-way vehicular
collision if he had properly parked the prime mover on the shoulder of the national road.
The improper parking of vehicles, most especially along the national highways, poses a
serious and unnecessary risk to the lives and limbs of other motorists and passengers.
Drivers owe a duty of care to follow basic tra c rules and regulations and to observe
road safety standards. They owe that duty not only for their own safety, but also for
that of other motorists. We can prevent most vehicular accidents by simply following
basic traffic rules and regulations.
We also note a failure of implementation of basic safety standards, particularly
the law on early warning devices. This applies even more to trucks and big vehicles,
which are prone to mechanical breakdown on the national highway. The law, as crafted,
requires vehicles to be equipped with triangular re ectorized plates. 3 2 Vehicles
without the required early warning devices are ineligible for registration. 3 3 Vehicle
owners may also be arrested and fined for non-compliance with the law. 3 4
The Land Transportation O ce (LTO) owes a duty to the public to ensure that all
vehicles on the road meet basic and minimum safety features, including that of early
warning devices. It is most unfortunate that We still see dilapidated and rundown
vehicles on the road with substandard safety features. These vehicles not only pose a
hazard to the safety of their occupants but that of other motorists. The prime mover
truck in this case should not have been granted registration because it failed to comply
with the minimum safety features required for vehicles on the road.
It is, indeed, time for tra c enforcement agencies and the LTO to strictly enforce
all pertinent laws and regulations within their mandate.
WHEREFORE, the petition is GRANTED. The Court of Appeals decision dated
August 28, 2003 is hereby SET ASIDE. The RTC decision dated August 7, 2001 is
REINSTATED IN FULL.
SO ORDERED.
Ynares-Santiago, Austria-Martinez, Corona * and Nachura, JJ., concur.
Footnotes
1. Rollo, pp. 39-50-A.

2. Id. at 68-108.
3. Id. at 72-73.
4. Id. at 89-90.
5. Id. at 90.
6. Id. at 72-74.
7. Id. at 45-46.
8. Id. at 52-57.
9. Id. at 107-108.
10. Id. at 101-107.
11. Id. at 50.
12. Id. at 46-48.
13. G.R. No. 116110, May 15, 1996, 256 SCRA 746.
14. Rollo, pp. 48-50.

15. Id. at 26, 29.
16. Philippine Bank of Commerce v. Court of Appeals, G.R. No. 97626, March 14, 1997, 269
SCRA 695, 702-703.
17. Corliss v. Manila Railroad Company, G.R. No. L-21291, March 28, 1969, 27 SCRA 674,
680.
18. 37 Phil. 809, 813 (1918).

19. Rollo, p. 102.
20. Id. at 90-91.
21. Id. at 93.
22. Supra note 13.
23. Id. at 275.
24. Id. at 83.
25. Id. at 262-263.
26. Supra note 13.
27. Vda. de Bataclan v. Medina, 102 Phil. 181 (1957), citing 38 Am. Jur. 695-696.
28. Mercury Drug v. Baking, G.R. No. 156037, May 25, 2007.
29. Supra.
30. G.R. No. L-65295, March 10, 1987, 148 SCRA 353, 365-367.
31. G.R. No. 159270, August 22, 2005, 467 SCRA 569, 582-583.
32. Rollo, pp. 29-30. Letter of Instruction No. 229.

33. Id. at 32-34. Memorandum Circular Nos. 92-146.
34. Id. at 31-32. LTO Memorandum dated October 16, 1995.
* Vice Associate Justice Minita V. Chico-Nazario. Justice Nazario is on official leave per
Special Order No. 484 dated January 11, 2008.

EN BANC
[G.R. No. 13505. February 4, 1919.]
GEO. W. DAYWALT , plaintiff-appellant, vs . LA CORPORACION DE LOS

PADRES AGUSTINOS RECOLETOS, ET AL. , defendants-appellees.
C.C. Cohn and Thos. D. Aitken, for appellant.

Crossfield & O'Brien, for appellee.
SYLLABUS
1.CONTRACTS; DAMAGES FOR BREACH; LIABILITY OF THIRD PARTY. —

Whatever may be the character of the liability, if any, which a stranger to a contract may
incur by advising or assisting one of the parties to evade performance, he cannot
become more extensively liable in damages for the nonperformance of the contract
than the party in whose behalf he inter meddles.
2.ID.; ID.; MEASURE OF DAMAGES FOR BREACH OF CONTRACT. — The damages
recoverable upon breach of contract are, primarily, the ordinary, natural and in a sense
the necessary damage resulting from the breach. Other damages, known as special
damages, are recoverable where it appears that the particular conditions which made
such damages a probable consequence of the breach were known to the delinquent
party at the time the contract was made. This proposition must be understood with the
quali cation that, if the damages are in the legal sells remote or speculative, knowledge
of the special conditions which render such damages possible will not make them
recoverable. Special damages of this character cannot be recovered unless made the
subject of special stipulation.
3.ID; ID.; ID.; DAMAGES FOR BREACH OF CONTRACT FOR SALE OF LAND. — The
damages ordinarily recoverable against a vendor for failure to deliver land which he has
contracted to deliver is the value of the use and occupation of the land for the tune
during which it is wrongfully withheld.
DECISION
STREET , J : p
In the year 1902, Teodorica Endencia, an unmarried woman, resident in the

Province of Mindoro, executed a contract whereby she obligated herself to convey to
Geo. W. Daywalt,. a tract of land situated in the barrio of Mangarin, municipality of
Bulalacao, now San Jose, in said province. It was agreed that a deed should be
executed as soon as the title to the land should be perfected by proceedings in the
Court of Land Registration and a Torrens certi cate should be procured therefor in the
name of Teodorica Endencia. A decree recognizing the right of Teodorica as owner was
entered in said court in August 1906, but the Torrens certi cate was not issued until
later. The parties, however, met immediately upon the entering of this decree and made
a new contract with a view to carrying their original agreement into effect. This new
contract was executed in the form of a deed of conveyance and bears date of August
16, 1906. The stipulated price was xed at P4,000, and the area of the land enclosed in
the boundaries defined in the contract was stated to be 452 hectares and a fraction.
The second contract was not immediately carried into effect for the reason that
the Torrens certi cate was not yet obtainable and in fact said certi cate was not
issued until the period of performance contemplated in the contract had expired.
Accordingly, upon October 3, 1908, the parties entered into still another agreement,
superseding the old, by which Teodorica Endencia agreed, upon receiving the Torrens
title to the land in question, to deliver the same to the Hongkong and Shanghai Bank in
Manila, to be forwarded to the Crocker National Bank in San Francisco, where it was to
be delivered to the plaintiff upon payment of a balance of P3,100.
The Torrens certi cate was in time issued to Teodorica Endencia, but in the
course of the proceedings relative to the registration of the land, it was found by official
survey that the area of the tract inclosed in the boundaries stated in the contract was
about 1,248 hectares instead of 452 hectares as stated in the contract. In view of this
development Teodorica Endencia became reluctant to transfer the whole tract to the
purchaser, asserting that she never intended to sell so large an amount of land and that
she had been misinformed as to its area.
This attitude of hers led to litigation in which Daywalt nally succeeded, upon
appeal to the Supreme Court, in obtaining a decree for speci c performance; and
Teodorica Endencia was ordered to convey the entire tract of land to Daywalt pursuant
to the contract of October 3, 1908, which contract was declared to be in full force and
effect. This decree appears to have become nally effective in the early part of the year
1914.1
The defendant, La Corporacion de los Padres Recoletos, is a religious
corporation, with its domicile in the city of Manila. Said corporation was formerly the
owner of a large tract of land, known as the San Jose Estate, on the island of Mindoro,
which was sold to the Government of the Philippine Islands in the year 1909. The same
corporation was at this time also the owner of another estate on the same island
immediately adjacent to the land which Teoderica Endencia had sold to Geo. W.
Daywalt; and for many years the Recoletos Fathers had maintained large herds of cattle
on the farms referred to. Their representative, charged with the management of these
farms, was father Isidoro Sanz, himself a member of the order. Father Sanz had long
been well acquainted with Teodorica Endencia and exerted over her an in uence and
ascendancy due to his religious character as well as to the personal friendship which
existed between them. Teodorica appears to be a woman of little personal force, easily
subject to in uence, and upon all the important matters of business was accustomed
to seek, and was given, the advice of Father Sanz and other members of his order with
whom she came in contact.
Father Sanz was fully aware of the existence of the contract of 1902 by which
Teodorica Endencia agreed to sell her land to the plaintiff as well as of the later
important developments connected with the history of that contract and the contract
substituted successively for it; and in particular Father Sanz, as well as other members
of the defendant corporation, knew of the existence of the contract of October 3, 1908,
which, as we have already seen, nally xed the rights of the parties to the property in
question. When the Torrens certi cate was nally issued in 1909 in favor of Teodorica
Endencia, she delivered it for safekeeping to the defendant corporation, and it was then
taken to Manila where it remained in the custody and under the control of P. Juan
Labarga the procurador and chief o cial of the defendant corporation, until the delivery
thereof to the plaintiff was made compulsory by reason of the decree of the Supreme
Court in 1914.
When the defendant corporation sold the San Jose Estate, it was necessary to
bring the cattle off of that property; and, in the rst half of 1909, some 2,368 head were
removed to the estate of the corporation immediately adjacent to the property which
the plaintiff had purchased from Teodorica Endencia. As Teodorica still retained
possession of said property Father Sanz entered into an arrangement with her whereby
large numbers of cattle belonging to the defendant corporation were pastured upon
said land during a period extending from June 1, 1909, to May 1, 1914.
Under the rst cause stated in the complaint in the present action the plaintiff
seeks to recover from the defendant corporation the sum of P24,000, as damages for
the use and occupation of the land in question by reason of the pasturing of cattle
thereon during the period stated. The trial court came to the conclusion that the
defendant corporation was liable for damages by reason of the use and occupation of
the premises in the manner stated; and xed the amount to be recovered at P2,497.
The plaintiff appealed and has assigned error to this part of the judgment of the court
below, insisting that damages should have been awarded in a much larger sum and at
least to the full extent of P24,000, the amount claimed in the complaint.
As the defendant did not appeal, the propriety of allowing damages for the use
and occupation of the land to the extent of P2,497, the mount awarded, is not now in
question; and the only thing here to be considered, in connection with this branch of the
case, is whether the damages allowed under this head should be increased. The trial
court lightly ignored the fact that the defendant corporation had paid Teodorica
Endencia for use and occupation of the same land during the period in question at the
rate of P425 per annum, inasmuch as the nal decree of this court in the action for
speci c performance is conclusive against her right, and as the defendant corporation
had notice of the rights of the plaintiff under his contract of purchase, it can not be
permitted that the corporation should escape liability in this action by proving payment
of rent to a person other than the true owner.
With reference to the rate at which compensation should be estimated the trial
court came to the following conclusion:
"As to the rate of the compensation, the plaintiff contends that the
defendant corporation maintained at least one thousand head of cattle on the
land and that the pasturage was of the value of forty centavos per head monthly,
or P4,800 annually, for the whole tract. The court can not accept this view. It is
rather improbable that 1,248 hectares of wild Mindoro land would furnish
su cient pasturage for one thousand head of cattle during the entire year, and,
considering the locality, the rate of forty centavos per head monthly seems too
high. The evidence shows that after having recovered possession of the land the
plaintiff rented it to the defendant corporation for fty centavos per hectare
annually, the tenant to pay the taxes on the land, and this appears to be a
reasonable rent. There is no reason to suppose that the land was worth more for
grazing purposes during the period from 1909 to 1913, than it was at the later
period. Upon this basis the plaintiff is entitled to damages in the sum of P2,497,
and is under no obligation to reimburse the defendants for the land taxes paid by
either of them during the period the land was occupied by the defendant
corporation. It may be mentioned in this connection that the Lontok tract
adjoining the land in question and containing over three thousand hectares
appears to have been leased for only P1,000 a year, plus the taxes."
From this it will be seen that the trial court estimated the rental value of the land
for grazing purposes at 50 centavos per hectare per annum, and roughly adopted the
period of four years as the time for which compensation at that rate should be made.
As the court had already found that the defendant was liable for these damages from
June, 1, 1909, to May 1, 1914, or a period of four years and eleven months, there seems
some ground for the contention made in the appellant's rst assignment of error that
the court's computation was erroneous, even accepting the rule upon which the
damages were assessed, as it is manifest that at the rate of 50 centavos per hectare
per annum, the damages for four years and eleven months would be P3,090.
Notwithstanding this circumstance, we are of the opinion that the damages
assessed are su cient to compensate the plaintiff for the use and occupation of the
land during the whole time it was used. There is evidence in the record strongly tending
to show that the wrongful use of the land by the defendant was not continuous
throughout the year but was con ned mostly to the season when the forage obtainable
on the land of the defendant corporation was not su cient to maintain its cattle, for
which reason it became necessary to allow them to go over to pasture on the land in
question; and it is not clear that the whole of the land was used for pasturage at any
time. Considerations of this character probably led the trial court to adopt four years as
roughly being the period during which compensation should be allowed. But whether
this was advertently done or not, we see no su cient reason, in the uncertainty of the
record with reference to the number of the cattle grazed and the period when the land
was used, for substituting our guess for the estimate made by the trial court.
In the second cause of action stated in the complaint the plaintiff seeks to
recover from the defendant corporation the sum of P500,000, as damages, on the
ground that said corporation, for its own sel sh purposes, unlawfully induced
Teodorica Endencia to refrain from the performance of her contract for the sale of the
land in question and to withhold delivery to the plaintiff of the Torrens title, and further,
maliciously and without reasonable cause, maintained her in her defense to the action
of speci c performance which was nally decided in favor of the plaintiff in this court.
The cause of action here stated is based on a liability derived from the wrongful
interference of the defendant in the performance of the contract between the plaintiff
and Teodorica Endencia; and the large damages laid in the complaint were, according
to the proof submitted by the plaintiff, incurred as a result of a combination of
circumstances of the following nature: In 1911, it appears, the plaintiff, as the owner of
the land which he had bought from Teodorica Endencia entered into a contract (Exhibit
C) with S.B. Wake eld, of San Francisco, for the sale and disposal of said lands to a
sugar growing and milling enterprise, the successful launching of which depended on
the ability of Daywalt to get possession of the land and the Torrens certi cate of title.
In order to accomplish this end, the plaintiff returned to the Philippine Islands,
communicated his arrangement to the defendant, and made repeated efforts to secure
the registered title for delivery in compliance with said agreement with Wake eld.
Teodorica Endencia seems to have yielded her consent to the consummation of her
contract, but the Torrens title was then in the possession of Padre Juan Labarga in
Manila, who refused to deliver the document. Teodorica also was in the end prevailed
upon to stand out against the performance of her contract with the plaintiff with the
result that the plaintiff was kept out of possession until the Wake eld project for the
establishment of a large sugar growing and milling enterprise fell through. In the light of
what has happened in recent years in the sugar industry, we feel justi ed in saying that
the project above referred to, if carried into effect, must inevitably have proved a great
success.
The determination of the issue presented in this second cause of action requires
a consideration of two points. The rst is whether a person who is not a party to a
contract for the sale of land makes himself liable for damages to the vendee, beyond
the value of the use and occupation, by colluding with the vendor and maintaining him in
the effort to resist an action for speci c performance. The second is whether the
damages which the plaintiff seeks to recover under this head are too remote and
speculative to be the subject of recovery.
As preliminary to a consideration of the rst of these questions, we deem it well
to dispose of the contention that the members of the defendant corporation, in
advising and prompting Teodorica Endencia not to comply with the contract of sale,
were actuated by improper and malicious motives. The trial court found that this
contention was not sustained, observing that while it was true that the circumstances
pointed to an entire sympathy on the part of the defendant corporation with the efforts
of Teodorica Endencia to defeat the plaintiff's claim to the land, the fact that its
o cials may have advised her not to carry the contract into effect would not constitute
actionable interference with such contract. It may be added that when one considers
the hardship that the ultimate performance of that contract entailed on the vendor, and
the doubt in which the issue was involved — to the extent that the decision of the Court
of the First Instance was unfavorable to the plaintiff and the Supreme Court itself was
divided — the attitude of the defendant corporation, as exhibited in the conduct of its
procurador, Juan Labarga, and other members of the order of the Recollect Fathers, is
not di cult to understand. To our mind a fair conclusion on this feature of the case is
that father Juan Labarga and his associates believed in good faith that the contract
could not be enforced and that Teodorica would be wronged if it should be carried into
effect. Any advice or assistance which they may have given was, therefore, prompted by
no mean or improper motive. It is not, in our opinion, to be denied that Teodorica would
have surrendered the documents of title and given possession of the land but for the
in uence and promptings of members of the defendant corporation. But we do not
credit the idea that they were in any degree in uenced to the giving of such advice by
the desire to secure to themselves the paltry privilege of grazing their cattle upon the
land in question to the prejudice of the just rights of the plaintiff.
The attorney for the plaintiff maintains that, by interfering in the performance of
the contract in question and obstructing the plaintiff in his efforts to secure the
certi cate of title to the land, the defendant corporation made itself a co-participant
with Teodorica Endencia in the breach of said contract; and inasmuch as father Juan
Labarga, at the time of said unlawful intervention between the contracting parties, was
fully aware of the existence of the contract (Exhibit C) which the plaintiff had made with
S.B. Wake eld, Francisco, it is insisted that the defendant corporation is liable for the
loss consequent upon the failure of the project outlined in said contract.
In this connection reliance is placed by the plaintiff upon certain American and
English decisions in which it is held that a person who is a stranger to a contract may,
by an unjusti able interference in the performance thereof, render himself liable for the
damages consequent upon non-performance. It is said that the doctrine of these cases
was recognized by this court in Gilchrist vs. Cuddy (29 Phil. Rep., 542); and we have
been earnestly pressed to extend the rule there enunciated to the situation here
presented.
Somewhat more than half a century ago the English Court of the Queen's Bench
saw its way clear to permit an action for damages to be maintained against a stranger
to a contract wrongfully interfering in its performance. The leading case on this subject
is Lumley vs. Gye ( [1853], 2 El. & Bl., 216). It there appeared that the plaintiff, as
manager of a theatre, had entered into a contract with Miss Johanna Wagner, an opera
singer, whereby she bound herself for a period to sing in the plaintiff's theatre and
nowhere else. The defendant, knowing of the existence of this contract, and, as the
declaration alleged, "maliciously intending to injure the plaintiff," enticed and procured
Miss Wagner to leave the plaintiff's employment. It was held that the plaintiff was
entitled to recover damages. The right which was here recognized had its origin in a
rule, long familiar to the courts of the common law, to the effect that any person who
entices a servant from his employment is liable in damages to the master. The master's
interest in the service rendered by his employee is here considered as a distinct subject
of juridical right. It being thus accepted that it is a legal wrong to break up a relation of
personal service, the question now arose whether it is illegal for one person to interfere
with any contract relation subsisting between others. Prior to the decision of Lumley vs.
Gye [ supra] it had been supposed that the liability here under consideration was limited
to the cases of the enticement of menial servants, apprentices, and others to whom the
English Statutes of Laborers were applicable. But in the case cited the majority of the
judges concurred in the opinion that the principle extended to all cases of hiring. This
doctrine was followed by the Court of Appeal in Bowen vs. Hall ( [1881], 6 Q.B., Div.,
333); and in Temperton vs. Russell ([1893], 1 Q.B., 715), it was held that the right of
action for maliciously procuring a breach of contract is not con ned to contracts for
personal services, but extends to contracts in general. In that case the contract which
the defendant had procured to be breached was a contract for the supply of building
material.
Malice in some form is generally supposed to be an essential ingredient in cases
of interference with contract relations. But upon the authorities it is enough if the
wrongdoer, having knowledge of the existence of the contract relation, in bad faith sets
about to break it up. Whether his motive is to bene t himself or gratify his spite by
working mischief to the employer is immaterial. Malice in the sense of ill-will or spite is
not essential.
Upon the question as to what constitutes legal justi cation, a good illustration
was put in the leading case. If a party enters into contract to go for another upon a
journey to a remote and unhealthful climate, and a third per son, with a bona de
purpose of bene ting the one who is under contract to go, dissuades him from the
step, no action will lie. But if the advice is not disinterested and the persuasion is used
for "the indirect purpose of bene ting the defendant at the expense of the plaintiff," the
intermedler is liable if his advice is taken and the contract broken.
The doctrine embodied in the cases just cited has sometimes been found useful,
in the complicated relations of modern industry, as a means of restraining the activities
of labor unions and industrial societies when improperly engaged in the promotion of
strikes. An illustration of the application of the doctrine in question in a case of this kind
is found in South Wales Miners Federation vs. Glamorgan Coal Co. ( [1905], A. C., 239) .
It there appeared that certain miners employed in the plaintiff's collieries, acting under
the order of the executive council of the defendant federation, violated their contract
with the plaintiff by abstaining from work on certain days. The federation and council
acted without any actual malice or ill-will towards the plaintiff, and the only object of the
order in question was that the price of coal might thereby be kept up, a factor which
affected the miner's wage scale. It was held that no su cient justi cation was shown
and that the federation was liable.
In the United States, the rule established in England by Lumley vs. Gye [ supra] and
subsequent cases is commonly accepted, though in a few of the States the broad idea
that a stranger to a contract can be held liable upon it is rejected, and in these
jurisdictions the doctrine, if accepted at all, is limited to the situation where the contract
is strictly for personal service. (Boyson vs. Thorn, 98 Cal., 578; Chambers & Marshall vs.
Baldwin 91 Ky., 121; bourlier vs. Macauley, 91 Ky., 135; Glencoe Land & Gravel Co. vs.
Hudson Bros. Com. Co., 138 Mo., 439.)
It should be observed in this connection that, according to the English and
American authorities, no question can be made as to the liability of one who interferes
with a contract existing between others by means which, under known gal canons, can
be denominated an unlawful means. Thus, if performance is prevented by force,
intimidation, coercion, or threats, or by false or defamatory statements, or by nuisance
or riot, the person using such unlawful means is, under all the authorities, liable for the
damage which ensues. And in jurisdictions where the doctrine of Lumley is. Gye [ supra]
is rejected, no liability can arise from a neddlesome and malicious interference with a
contract relation unless some such unlawful means as those just indicated are used.
(See cases last above cited.)
This brings us to the decision made by this court in Gilchrist vs. Cuddy (29 Phil.
Rep., 542) It there appeared that one Cuddy, the owner of a cinematographic lm, let it
under a rental contract to the plaintiff Gilchrist for a speci ed period of time. In
violation of the terms of this agreement, Cuddy proceeded to turn over the lm also
under a rental contract, to the defendants Espejo and Zaldarriaga. Gilchrist thereupon
restored to the Court of First Instance and procured an injunction restraining the
defendants from exhibiting the lm in question in their theater during the period
speci ed in the contract of Cuddy with Gilchrist. Upon appeal to this court it was in
effect held that the injunction was not improperly granted, although the defendants did
not, at the time their contract was made, know the identity of the plaintiff as the person
holding the prior contract but did know of the existence of a contracting favor of
someone. It was also said argue do, that the defendants would have been liable in
damages under Article 1902 of the Civil Code, if the action had been brought by the
plaintiff to recover damages. The force of the opinion is, we think, somewhat weakened
by the criticism contained in the concurring opinion, wherein it is said that the question
of breach of contract by inducement was not really involved in the case. Taking the
decision upon the point which was really decided, it is authority for the proposition that
one who buys something which he knows has been sold to some other person can be
restrained from using that thing to the prejudice of the person having the prior and
better right.
Translated into terms applicable to the case at bar, the decision in Gilchrist vs.
Cuddy (29 Phil. Rep., 542), indicates that the defendant corporation, having notice of
the sale of the land in question to Daywalt, might have been enjoined by the latter from
using the property for grazing its cattle thereon. That the defendant corporation is also
liable in this action for the damage resulting to the plaintiff from the wrongful use and
occupation of the property has also been already determined. But it will be observed
that in order to sustain this liability it is not necessary to resort to any subtle exegesis
relative to the liability of a stranger to a contract for unlawful interference in the
performance thereof. It is enough that defendant used the property with notice that the
plaintiff had a prior and better right.
Article 1902 of the Civil Code declares that any person who by an act or
omission, characterized by fault or negligence, causes damage to another shall be
liable for the damage so done. Ignoring so much of this article as relates to liability for
negligence, we take the rule to be that a person is liable for damage done to another by
any culpable act and by "culpable act" we mean any act which is blameworthy when
judged by accepted legal standards. The idea thus expressed is undoubtedly broad
enough to include any rational conception of liability for the tortious acts likely to be
developed in any society. Thus considered, it cannot be said that the doctrine of Lumley
vs. Gye [supra] and related cases is repugnant to the principles of the civil law.
Nevertheless, it must be admitted that the codes and jurisprudence of the civil
law furnish a somewhat uncongenial eld in which to propagate the idea that a stranger
to a contract may be sued for the breach thereof. Article 1257 of the Civil Code
declares that contracts are binding only between the parties and their privies. In
conformity with this it has been held that a stranger to a contract has no right of action
for the nonful llment of the contract except in the case especially contemplated in the
second paragraph of the same article. (Uy Tam and Uy Yet vs. Leonard, 30 Phil. Rep.,
471.) As observed by this court in Manila Railroad Co. vs. Compania Trasatlantica, R.G.
No. 11318 (38 Phil. Rep., 875), a contract, when effectually entered into between certain
parties, determines not only the character and extent of the liability of the contracting
parties but also the person or entity by whom the obligation is exigible. The same idea
should apparently be applicable with respect to the person against whom the
obligation of the contract may be enforced; for it is evident that there must be a certain
mutuality in the obligation, and if the stranger to a contract is not permitted to sue to
enforce it, he cannot consistently be held liable upon it.
If the two antagonistic ideas which we have just brought into juxtaposition are
capable of reconciliation, the process must be accomplished by distinguishing clearly
between the right of action arising from the improper interference with the contract by
a stranger thereto, considered as an independent act generative of civil liability, and the
right of action ex contractu against a party to the contract resulting from the breach
thereof. However, we do not propose here to pursue the matter further, inasmuch as,
for reasons presently to be stated, we are of the opinion that neither the doctrine of
Lumley vs. Gye [ supra] nor the application made of it by this court in Gilchrist vs. Cuddy
(29 Phil. Rep., 542), affords any basis for the recovery of the damages which the
plaintiff is supposed to have suffered by reason of his inability to comply with the
terms of the Wakefield contract.
Whatever may be the character of the liability which a stranger to a contract may
incur by advising or assisting one of the parties to evade performance, there is one
proposition upon which all must agree. This is, that the stranger cannot become more
extensively liable in damages for the nonperformance of the contract than the party in
whose behalf he intermeddles. To hold the stranger liable for damages in excess of
those that could be recovered against the immediate party to the contract would lead
to results at once grotesque and unjust. In the case at bar, as Teodorica Endencia was
the party directly bound by the contract, it is obvious that the liability of the defendant
corporation, even admitting that it has made itself co-participant in the breach of the
contract, can in no event exceed hers. This leads us to consider at this point the extent
of the liability of Teodorica Endencia to the plaintiff by reason of her failure to surrender
the certificate of title and to place the plaintiff in possession.
It should in the rst place be noted that the liability of Teodorica Endencia for
damages resulting from the breach of her contract with Daywalt was a proper subject
for adjudication in the action for speci c performance which Daywalt instituted against
her in 1909 and which was litigated by him to a successful conclusion in this court, but
without obtaining any special adjudication with reference to damages. Indemni cation
for damages resulting from the breach of a contract is a right inseparably annexed to
every action for the ful llment of the obligation (Art. 1124, Civil Code); and it is clear
that if damages are not sought or recovered in the action to enforce performance they
cannot be recovered in an independent action. As to Teodorica Endencia, therefore, it
should be considered that the right of action to recover damages for the breach of the
contract in question was exhausted in the prior suit. However, her attorneys have not
seen t to interpose the defense of res judicata in her behalf; and as the defendant
corporation was not a party to that action, and such defense could not in any event be
of any avail to it, we proceed to consider the question of the liability of Teodorica
Endencia for damages without reference to this point.
The most that can be said with reference to the conduct of Teodorica Endencia
is that she refused to carry out a contract for the sale of certain land and resisted to the
last an action for speci c performance in court. The result was that the plaintiff was
prevented during a period of several years from exerting that control over the property
which he was entitled to exert and was meanwhile unable to dispose of the property
advantageously. Now, what is the measure of damages for the wrongful detention of
real property by the vender after the time has come for him to place the purchaser in
possession?
The damages ordinarily and normally recoverable against a vendor for failure to
deliver land which he has contracted to deliver is the value of the use and occupation of
the land for the time during which it is wrongfully withheld. And of course where the
purchaser has not paid the purchase money, a deduction may be made in respect to the
interest on the money which constitutes the purchase price. Substantially the same rule
holds with respect to the liability of a landlord who fails to put his tenant in possession
pursuant to a contract of lease. The measure of damages is the value of the leasehold
interest, or use and occupation, less the stipulated rent, where this has not been paid.
The rule that the measure of damages for the wrongful detention of land is normally to
be found in the value of use and occupation is, we believe, one of the things that may be
considered certain in the law (39 Cyc., 1630; 24 Cyc., 1052; Sedgewick on Damages,
Ninth ed., Sec. 185.) — almost as well settled, indeed, as the rule that the measure of
damages for the wrongful detention of money is to be found in the interest.
We recognize the possibility that more extensive damages may be recovered
where, at the time of the creation of the contractual obligation, the vendor, or lessor, is
aware of the use to which the purchaser or lessee desires to put the property which is
the subject of the contract, and the contract is made with the eyes of the vendor or
lessor open to the possibility of the damage which may result to the other party from
his own failure to give possession. The case before us is not of this character,
inasmuch as at the time when the rights of the parties under the contract were
determined, nothing was known to any of them about the San Francisco capitalist who
would be willing at back the project portrayed in Exhibit C.
The extent of the liability for the breach of a contract must be determined in the
light of the situation in existence at the time the contract is made; and the damages
ordinarily recoverable are in all events limited to such as might be reasonably foreseen
in the light of the facts then known to the contracting parties. Where the purchaser
desires to protect himself, in the contingency of the failure of the vendor promptly to
give possession, from the possibility of incurring other damages than such as are
incident to the normal value of the use and occupation, he should cause to be inserted
in the contract a clause providing for stipulated amount to be paid upon failure of the
vendor to give possession; and no case has been called to our attention where, in the
absence of such a stipulation, damages have been held to be recoverable by the
purchaser in excess of the normal value of use and occupation. On the contrary, the
most fundamental conceptions of the law relative to the assessment of damages are
inconsistent with such idea.
The principles governing this branch of the law were profoundly considered in the
case of Hadley vs. Baxendale (9 Exch., 341), decided in the English Court of Exchequer
in 1854; and a few words relative to the principles governing the recovery of damages,
as expounded in that decision, will here be found instructive. The decision in that case is
considered a leading authority in the jurisprudence of the common law. The plaintiffs in
that case were proprietors of a mill in Gloucester, which was propelled by steam, and
which was engaged in grinding and supplying meal and our to customers. The shaft of
the engine got broken, and it became necessary that the broken shaft be sent to an
engineer or foundry man at Greenwich, to serve as a model for casting or
manufacturing another that would t into the machinery. The broken shaft could be
delivered at Greenwich on the second day after its receipt by the carrier It was delivered
to the defendants, who were common carriers engaged in that business between these
points, and who had told plaintiffs it would be delivered at Greenwich on the second
day after its delivery to them, if delivered at a given hour. The carriers were informed
that the mill was stopped, but were not informed of the special purpose for which the
broken shaft was desired to be forwarded. They were not told the mill would remain
idle until the new shaft would be returned, or that the new shaft could not be
manufactured at Greenwich until the broken one arrived to serve as a model. There was
delay beyond the two days in delivering the broken shaft at Greenwich, and a
corresponding delay in starting the mill. No explanation of the delay was offered by the
carriers. The suit was brought to recover damages for the lost pro ts of the mill,
caused by the delay in delivering the broken shaft. It was held that the plaintiff could not
recover.
The discussion contained in the opinion of the court in that case leads to the
conclusion that the damages recoverable in case of the breach of a contract are two
sorts, namely, (1) the ordinary, natural, and in a sense necessary damage; and (2)
special damages.
Ordinary damages is found in all breaches of contract where there are no special
circumstances to distinguish the case specially from other contracts. The
consideration paid for an unperformed promise is an instance of this sort of damage.
In all such cases the damages recoverable are such as naturally and generally would
result from such a breach, "according to the usual course of things." In cases involving
only ordinary damage no discussion is ever indulged as to whether that damage was
contemplated or not. This is conclusively presumed from the immediateness and
inevitableness of the damage, and the recovery of such damage follows as a necessary
legal consequence of the breach. Ordinary damage is assumed as a matter of law to be
within the contemplation of the parties.
Special damage, on the other hand, is such as follows less directly from the
breach than ordinary damage. It is only found in case where some external condition,
apart from the actual terms to the contract exists or intervenes, as it were, to give a turn
to affairs and to increase damage in a way that the promisor, without actual notice of
that external condition, could not reasonably be expected to foresee. Concerning this
sort of damage, Hadley vs. Baxendale (1854) [ supra] lays down the de nite and just
rule that before such damage can be recovered the plaintiff must show that the
particular condition which made the damage a possible and likely consequence of the
breach was known to the defendant at the time the contract was made.
The statement that special damages may be recovered where the likelihood of
such damages owing from the breach of the contract is contemplated and foreseen
by the parties needs to be supplemented by a proposition which, though not enunciated
in Hadley vs. Baxendale, is yet clearly to be drawn from subsequent cases. This is that
where the damage which a plaintiff seeks to recover as special damage is so far
speculative as to be in contemplation of law remote, noti cation of the special
conditions which make that damage possible cannot render the defendant liable
therefor. To bring damages which would ordinarily be treated as remote within the
category of recoverable special damages, it is necessary that the condition should be
made the subject of contract in such sense as to become an express or implied term of
the engagement. Horne vs. Midland R. Co. (L R., 8 C.P., 131) is a case where the damage
which was sought to be recovered as special damage was really remote, and some of
the judges rightly placed the disallowance of the damage on the ground that to make
such damage recoverable, it must so far have been within the contemplation of the
parties as to form at least an implied term of the contract. But others proceeded on the
idea that the notice given to the defendant was not su ciently full and de nite. The
result was the same in either view. The facts in that case were as follows: The plaintiffs,
shoe manufacturers at K, were under contract to supply by a certain day shoes to a rm
in London for the French government. They delivered the shoes to a carrier in su cient
time for the goods to reach London at the time stipulated in the contract and informed
the railroad agent that the shoes would be thrown back upon their hands if they did not
reach the destination in time. The defendants negligently failed to forward the good in
due season. The sale was therefore lost, and the market having fallen, the plaintiffs had
to sell at a loss.
In the preceding discussion we have considered the plaintiff's right chie y as
against Teodorica Endencia; and what has been said su ces in our opinion to
demonstrate that the damages laid under the second cause of action in the complaint
could not be recovered from her, rst, because the damages in question are special
damages which were not within contemplation of the parties when the contract was
made, and secondly, because said damages are too remote to be the subject of
recovery. This conclusion is also necessarily fatal to the right of the plaintiff to recover
such damages from the defendant corporation, for, as already suggested, by advising
Teodorica not to perform the contract, said corporation could in no event render itself
more extensively liable than the principal in the contract.
Our conclusion is that the judgment of the trial court should be a rmed, and it is
so ordered, with costs against the appellant.
Arellano, C. J., Torres, Carson, Araullo, Malcolm, Avanceña and Moir, JJ., concur.

EN BANC
[G.R. No. L-12219. March 15, 1918.]
AMADO PICART , plaintiff-appellant, vs . FRANK SMITH, jr. , defendant-

appellee.
Alejo Mabanag for appellant.

G. E. Campbell for appellee.
SYLLABUS
1. NEGLIGENCE; CRITERION FOR DETERMINING EXISTENCE OF NEGLIGENCE. —

The test for determining whether a person is negligent in doing an act whereby injury or
damage results to the person or property of another is this: Would a prudent man, in the
position of the person to whom negligence is attributed, foresee harm to the person
injured as a reasonable consequence of the course about to be pursued. If so, the law
imposes a duty on the actor to refrain from that course or to take precaution against its
mischievous results, and the failure to do so constitutes negligence. Reasonable
foresight of harm, followed by the ignoring of the admonition born of this prevision, is
the constitutive fact in negligence.
2. ID.; CONTRIBUTORY NEGLIGENCE; SUCCESSIVE NEGLIGENT ACTS. — Where
both parties are guilty of negligence, but the negligent act of one succeeds that of the
other by an appreciable interval of time, the one who has the last reasonable
opportunity to avoid the impending harm and fails to do so is chargeable with the
3. ID.; ID.; CASE AT BAR. — The plaintiff was riding a pony on a bridge. Seeing an
automobile ahead he improperly pulled his horse over to the railing on the right. The
driver of the automobile, however, guided his car toward the plaintiff without diminution
of speed until he was only a few feet away. He then turned to the right but passed so
closely to the horse that the latter being frightened, jumped around and was killed by
the passing car. Held: That although the plaintiff was guilty of negligence in being on
the wrong side of the bridge, the defendant was nevertheless civilly liable for the legal
damages resulting from the collision, as he had a fair opportunity to avoid the accident
after he realized the situation created by the negligence of the plaintiff and failed to
avail himself of that opportunity; while the plaintiff could by no means then place
himself in a position of greater safety.
DECISION
STREET , J : p
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank
Smith, jr., the sum of P31,100, as damages alleged to have been caused by an
automobile driven by the defendant. From a judgment of the Court of First Instance of
the Province of La Union absolving the defendant from liability the plaintiff has
appealed.
The occurrence which gave rise to the institution of this action took place on
December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It appears that
upon the occasion in question the plaintiff was riding on his pony over said bridge.
Before he had gotten half way across, the defendant approached from the opposite
direction in an automobile, going at the rate of about ten or twelve miles per hour. As
the defendant neared the bridge he saw a horseman on it and blew his horn to give
warning of his approach. He continued his course and after he had taken the bridge he
gave two more successive blasts, as it appeared to him that the man on horseback
before him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning
signals. However, being perturbed by the novelty of the apparition or the rapidity of the
approach, he pulled the pony closely up against the railing on the right side of the
bridge instead of going to the left. He says that the reason he did this was that he
thought he did not have su cient time to get over to the other side. The bridge is
shown to have a length of about 75 meters and a width of 4.08 meters. As the
automobile approached, the defendant guided it toward his left, that being the proper
side of the road for the machine. In so doing the defendant assumed that the horseman
would move to the other side. The pony had not as yet exhibited fright, and the rider had
made no sign for the automobile to stop. Seeing that the pony was apparently quiet, the
defendant, instead of veering to the right while yet some distance away or slowing
down, continued to approach directly toward the horse without diminution of speed.
When he had gotten quite near, there being then no possibility of the horse getting
across to the other side, the defendant quickly turned his car su ciently to the right to
escape hitting the horse alongside of the railing where it was then standing; but in so
doing the automobile passed in such close proximity to the animal that it became
frightened and turned its body across the bridge with its head toward the railing. In so
doing, it was struck on the hock of the left hind leg by the ange of the car and the limb
was broken. The horse fell and its rider was thrown off with some violence. From the
evidence adduced in the case we believe that when the accident occurred the free
space where the pony stood between the automobile and the railing of the bridge was
probably less than one and one half meters. As a result of its injuries the horse died.
The plaintiff received contusions which caused temporary unconsciousness and
required medical attention for several days.
The question presented for decision is whether or not the defendant in
maneuvering his car in the manner above described was guilty of negligence such as
gives rise to a civil obligation to repair the damage done; and we are of the opinion that
he is so liable. As the defendant started across the bridge, he had the right to assume
that the horse and rider would pass over to the proper side; but as he moved toward
the center of the bridge it was demonstrated to his eyes that this would not be done;
and he must in a moment have perceived that it was too late for the horse to cross with
safety in front of the moving vehicle. In the nature of things this change of situation
occurred while the automobile was yet some distance away; and from this moment it
was not longer within the power of the plaintiff to escape being run down by going to a
place of greater safety. The control of the situation had then passed entirely to the
defendant; and it was his duty either to bring his car to an immediate stop or, seeing
that there were no other persons on the bridge, to take the other side and pass
su ciently far away from the horse to avoid the danger of collision. Instead of doing
this, the defendant ran straight on until he was almost upon the horse. He was, we think,
deceived into doing this by the fact that the horse had not yet exhibited fright. But in
view of the known nature of horses, there was an appreciable risk that, if the animal in
question was unacquainted with automobiles, he might get excited and jump under the
conditions which here confronted him. When the defendant exposed the horse and rider
to this danger he was, in our opinion, negligent in the eye of the law.
may be stated as follows: Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent person would have used in the
same situation? If not, then he is guilty of negligence. The law here in effect adopts the
standard supposed to be supplied by the imaginary conduct of the discreet
paterfamilias of the Roman law. The existence of negligence in a given case is not
determined by reference to the personal judgment of the actor in the situation before
him. The law considers what would be reckless, blameworthy, or negligent in the man of
ordinary intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a
given situation must of course be always determined in the light of human experience
and in view of the facts involved in the particular case. Abstract speculation cannot here
be of much value but his much can be pro tably said: Reasonable men govern their
conduct by the circumstances which are before them or known to them. They are not,
and are not supposed to be, omniscient of the future. Hence they can be expected to
take care only when there is something before them to suggest or warn of danger.
Could a prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take precautions to guard
against that harm. Reasonable foresight of harm, followed by the ignoring of the
suggestion born of this prevision, is always necessary before negligence can be held to
exist. Stated in these terms, the proper criterion for determining the existence of
negligence in a given case is this: Conduct is said to be negligent when a prudent man
in the position of the tortfeasor would have foreseen that an effect harmful to another
was su ciently probable to warrant his foregoing the conduct or guarding against its
consequences.
Applying this test to the conduct of the defendant in the present case we think
that negligence is clearly established. A prudent man, placed in the position of the
defendant, would, in our opinion, have recognized that the course which he was
pursuing was fraught with risk, and would therefore have foreseen harm to the horse
and rider as a reasonable consequence of that course. Under these circumstances the
law imposed on the defendant the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he
was guilty of antecedent negligence in planting himself on the wrong side of the road.
But as we have already stated, the defendant was also negligent; and in such case the
problem always is to discover which agent is immediately and directly responsible. It
will be noted that the negligent acts of the two parties were not contemporaneous,
since the negligence of the defendant succeeded the negligence of the plaintiff by an
appreciable interval. Under these circumstances the law is that the person who has the
last fair chance to avoid the impending harm and fails to do so is chargeable with the
The decision in the case of Rakes vs. Atlantic, Gulf and Paci c Co.(7 Phil. Rep.,
359) should perhaps be mentioned in this connection. This Court there held that while
contributory negligence on the part of the person injured did not constitute a bar to
recover, it could be received in evidence to reduce the damages which would otherwise
have been assessed wholly against the other party. The defendant company had there
employed the plaintiff, a laborer, to assist in transporting iron rails from a barge in
Manila harbor to the company's yards located not far away. The rails were conveyed
upon cars which were hauled along a narrow track. At a certain spot near the water's
edge the track gave way by reason of the combined effect of the weight of the car and
the insecurity of the road bed. The car was in consequence upset; the rails slid off; and
the plaintiff's leg was caught and broken. It appeared in evidence that the accident was
due to the effects of a typhoon which had dislodged one of the supports of the track.
The court found that the defendant company was negligent in having failed to repair the
bed of the track and also that the plaintiff was, at the moment of the accident, guilty of
contributory negligence in walking at the side of the car instead of being in front or
behind. It was held that while the defendant was liable to the plaintiff by reason of its
negligence in having failed to keep the track in proper repair, nevertheless the amount
of the damages should be reduced on account of the contributory negligence of the
plaintiff. As will be seen the defendant's negligence in that case consisted in an
omission only. The liability of the company arose from its responsibility for the
dangerous condition of its track. In a case like the one now before us, where the
defendant was actually present and operating the automobile which caused the
damage, we do not feel constrained to attempt to weigh the negligence of the
respective parties in order to apportion the damage according to the degree of their
relative fault. It is enough to say that the negligence of the defendant was in this case
the immediate and determining cause of the accident and that the antecedent
negligence of the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense
pleaded in the defendant's answer, to the effect that the subject matter of the action
had been previously adjudicated in the court of a justice of the peace. In this connection
it appears that soon after the accident in question occurred, the plaintiff caused
criminal proceedings to be instituted before a justice of the peace charging the
defendant with the in iction of serious injuries (lesiones graves). At the preliminary
investigation the defendant was discharged by the magistrate and the proceedings
were dismissed. Conceding that the acquittal of the defendant at a trial upon the merits
in a criminal prosecution for the offense mentioned would be res adjudicata upon the
question of his civil liability arising from negligence — a point upon which it is
unnecessary to express an opinion — the action of the justice of the peace in
dismissing the criminal proceeding upon the preliminary hearing can have no such
effect. (See U.S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court must be
reversed, and judgment is here rendered that the plaintiff recover of the defendant the
sum of two hundred pesos (P200), with costs of both instances. The sum here
awarded is estimated to include the value of the horse, medical expenses of the
plaintiff, the loss or damage occasioned to articles of his apparel, and lawful interest on
the whole to the date of this recovery. The other damages claimed by the plaintiff are
remote or otherwise of such characters as not to be recoverable. So ordered.
Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ., concur.
Johnson, J., reserves his vote.
Separate Opinions
MALCOLM , J., concurring :
After mature deliberation, I have nally decided to concur with the judgment in
this case. I do so because of my understanding of the "last clear chance" rule of the law
of negligence as particularly applied to automobile accidents. This rule cannot be
invoked where the negligence of the plaintiff is concurrent with that of the defendant.
Again, if a traveller when he reaches the point of collision is in a situation to extricate
himself and avoid injury, his negligence at that point will prevent a recovery. But Justice
Street nds as a fact that the negligent act of the defendant succeeded that of the
plaintiff by an appreciable interval of time, and that at that moment the plaintiff had no
opportunity to avoid the accident. consequently, the "last clear chance" rule is
applicable. In other words, when a traveller has reached a point where he cannot
extricate himself and vigilance on his part will not avert the injury, his negligence in
reaching that position becomes the condition and not the proximate cause of the injury
and will not preclude a recovery. (Note especially Aiken vs. Metcalf [1917], 102 Atl.,
330.)

THIRD DIVISION
[G.R. No. 174161. February 18, 2015.]
R TRANSPORT CORPORATION , petitioner, vs . LUISITO G. YU ,

respondent.
DECISION
PERALTA , J : p
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court seeking to reverse and set aside the Decision 1 and Resolution, 2 dated September 9,
2005 and August 8, 2006, respectively, of the Court of Appeals ( CA) in CA-G.R. CV No.
84175.
The antecedent facts are as follows:
At around 8:45 in the morning of December 12, 1993, Loreta J. Yu, after having
alighted from a passenger bus in front of Robinson's Galleria along the north-bound lane of
Epifanio de los Santos Avenue (EDSA), was hit and run over by a bus driven by Antonio P.
Gimena, who was then employed by petitioner R Transport Corporation. Loreta was
immediately rushed to Medical City Hospital where she was pronounced dead on arrival. 3
On February 3, 1994, the husband of the deceased, respondent Luisito G. Yu, led a
Complaint for damages before the Regional Trial Court (RTC) of Makati City against
petitioner R Transport, Antonio Gimena, and Metro Manila Transport Corporation (MMTC)
for the death of his wife. MMTC denied its liability reasoning that it is merely the registered
owner of the bus involved in the incident, the actual owner, being petitioner R Transport. 4 It
explained that under the Bus Installment Purchase Program of the government, MMTC
merely purchased the subject bus, among several others, for resale to petitioner R
Transport, which will in turn operate the same within Metro Manila. Since it was not
actually operating the bus which killed respondent's wife, nor was it the employer of the
driver thereof, MMTC alleged that the complaint against it should be dismissed. 5 For its
part, petitioner R Transport alleged that respondent had no cause of action against it for it
had exercised due diligence in the selection and supervision of its employees and drivers
and that its buses are in good condition. Meanwhile, the driver Antonio Gimena was
declared in default for his failure to file an answer to the complaint. DcAaSI
After trial on the merits, wherein the parties presented their respective witnesses
and documentary evidence, the trial court rendered judgment in favor of respondent Yu
ruling that petitioner R Transport failed to prove that it exercised the diligence required of a
good father of a family in the selection and supervision of its driver, who, by its negligence,
ran over the deceased resulting in her death. It also held that MMTC should be held
solidarily liable with petitioner R Transport because it would unduly prejudice a third
person who is a victim of a tort to look beyond the certi cate of registration and prove
who the actual owner is in order to enforce a right of action. Thus, the trial court ordered
the payment of damages in its Decision 6 dated June 3, 2004, the dispositive portion of
which reads:
WHEREFORE, foregoing premises considered, judgment is hereby rendered
ordering defendants Rizal Transport and Metro Manila Transport Corporation to
be primarily and solidarily liable and defendant Antonio Parraba Gimena
subsidiarily liable to plaintiff Luisito Yu as follows:
1. Actual damages in the amount of Php78,357.00 subject to interest at the

legal rate from the filing of the complaint until fully paid;
2. Loss of income in the amount of Php500,000.00;
3. Moral damages in the amount of P150,000.00;
4. Exemplary damages in the amount of P20,000.00;
5. Attorney's fees in the amount of P10,000.00; and

6. Costs of suit. 7
On September 9, 2005, the CA a rmed the Decision of the RTC with modi cation
that defendant Antonio Gimena is made solidarily liable for the damages caused to
respondent. According to the appellate court, considering that the negligence of Antonio
Gimena was su ciently proven by the records of the case, and that no evidence of
whatever nature was presented by petitioner to support its defense of due diligence in the
selection and supervision of its employees, petitioner, as the employer of Gimena, may be
held liable for the damage caused. The CA noted that the fact that petitioner is not the
registered owner of the bus which caused the death of the victim does not exculpate it
from liability. 8 Thereafter, petitioner's Motion for Reconsideration was further denied by
the CA in its Resolution 9 dated August 8, 2006.
Hence, the present petition.
Petitioner essentially invokes the following ground to support its petition:
I.
THE COURT OF APPEALS ERRED IN AFFIRMING THE RULING OF THE

REGIONAL TRIAL COURT FINDING PETITIONER LIABLE FOR THE DAMAGES
CAUSED BY THE NEGLIGENCE OF ITS EMPLOYEE, WHICH WAS NOT
SUPPORTED BY THE EVIDENCE ON RECORD.
Petitioner insists that the CA and the RTC were incorrect in ruling that its driver was
negligent for aside from the mere speculations and uncorroborated testimonies of the
police o cers on duty at the time of the accident, no other evidence had been adduced to
prove that its driver was driving in a reckless and imprudent manner. It asserts that
contrary to the ndings of the courts below, the bus from which the victim alighted is
actually the proximate cause of the victim's death for having unloaded its passengers on
the lane where the subject bus was traversing. Moreover, petitioner reiterates its argument
that since it is not the registered owner of the bus which bumped the victim, it cannot be
held liable for the damage caused by the same. SAcaDE
We disagree.
Time and again, it has been ruled that whether a person is negligent or not is a
question of fact which this Court cannot pass upon in a petition for review on certiorari, as
its jurisdiction is limited to reviewing errors of law. 10 This Court is not bound to weigh all
over again the evidence adduced by the parties, particularly where the ndings of both the
trial and the appellate courts on the matter of petitioners' negligence coincide. As a
general rule, therefore, the resolution of factual issues is a function of the trial court, whose
ndings on these matters are binding on this Court, more so where these have been
a rmed by the Court of Appeals, 11 save for the following exceptional and meritorious
circumstances: (1) when the factual ndings of the appellate court and the trial court are
contradictory; (2) when the ndings of the trial court are grounded entirely on speculation,
surmises or conjectures; (3) when the lower court's inference from its factual ndings is
manifestly mistaken, absurd or impossible; (4) when there is grave abuse of discretion in
the appreciation of facts; (5) when the findings of the appellate court go beyond the issues
of the case, or fail to notice certain relevant facts which, if properly considered, will justify a
different conclusion; (6) when there is a misappreciation of facts; (7) when the ndings of
fact are themselves con icting; and (8) when the ndings of fact are conclusions without
mention of the speci c evidence on which they are based, are premised on the absence of
evidence, or are contradicted by evidence on record. 12
After a review of the records of the case, we nd no cogent reason to reverse the
rulings of the courts below for none of the aforementioned exceptions are present herein.
Both the trial and appellate courts found driver Gimena negligent in hitting and running
over the victim and ruled that his negligence was the proximate cause of her death.
Negligence has been de ned as "the failure to observe for the protection of the interests
of another person that degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury." 13 Verily, foreseeability is the
fundamental test of negligence. 14 It is the omission to do something which a reasonable
man, guided by those considerations which ordinarily regulate the conduct of human
affairs, would do, or the doing of something which a prudent and reasonable man would
not do. 15
In this case, the records show that driver Gimena was clearly running at a reckless
speed. As testi ed by the police o cer on duty at the time of the incident 16 and indicated
in the Autopsy Report, 17 not only were the deceased's clothes ripped off from her body,
her brain even spewed out from her skull and spilled over the road. Indeed, this Court is not
prepared to believe petitioner's contention that its bus was travelling at a "normal speed" in
preparation for a full stop in view of the fatal injuries sustained by the deceased. Moreover,
the location wherein the deceased was hit and run over further indicates Gimena's
negligence. As borne by the records, the bus driven by Gimena bumped the deceased in a
loading and unloading area of a commercial center. The fact that he was approaching such
a busy part of EDSA should have already cautioned the driver of the bus. In fact, upon
seeing that a bus has stopped beside his lane should have signalled him to step on his
brakes to slow down for the possibility that said bus was unloading its passengers in the
area. Unfortunately, he did not take the necessary precaution and instead, drove on and
bumped the deceased despite being aware that he was traversing a commercial center
where pedestrians were crossing the street. Ultimately, Gimena should have observed due
diligence of a reasonably prudent man by slackening his speed and proceeding cautiously
while passing the area.
Under Article 2180 18 of the New Civil Code, employers are liable for the damages
caused by their employees acting within the scope of their assigned tasks. Once
negligence on the part of the employee is established, a presumption instantly arises that
the employer was remiss in the selection and/or supervision of the negligent employee. To
avoid liability for the quasi-delict committed by its employee, it is incumbent upon the
employer to rebut this presumption by presenting adequate and convincing proof that it
exercised the care and diligence of a good father of a family in the selection and
supervision of its employees. 19 TaSEHC
Unfortunately, however, the records of this case are bereft of any proof showing the
exercise by petitioner of the required diligence. As aptly observed by the CA, no evidence
of whatever nature was ever presented depicting petitioner's due diligence in the selection
and supervision of its driver, Gimena, despite several opportunities to do so. In fact, in its
petition, apart from denying the negligence of its employee and imputing the same to the
bus from which the victim alighted, petitioner merely reiterates its argument that since it is
not the registered owner of the bus which bumped the victim, it cannot be held liable for
the damage caused by the same. Nowhere was it even remotely alleged that petitioner had
exercised the required diligence in the selection and supervision of its employee. Because
of this failure, petitioner cannot now avoid liability for the quasi-delict committed by its
negligent employee.
At this point, it must be noted that petitioner, in its relentless attempt to evade
liability, cites our rulings in Vargas v. Langcay 20 and Tamayo v. Aquino 21 insisting that it
should not be held solidarily liable with MMTC for it is not the registered owner of the bus
which killed the deceased. However, this Court, in Jereos v. Court of Appeals, et al., 22
rejected such contention in the following wise:
Finally, the petitioner, citing the case of Vargas vs. Langcay,
contends that it is the registered owner of the vehicle, rather than the
actual owner, who must be jointly and severally liable with the driver of
the passenger vehicle for damages incurred by third persons as a
consequence of injuries or death sustained in the operation of said
vehicle.
The contention is devoid of merit. While the Court therein ruled
that the registered owner or operator of a passenger vehicle is jointly
and severally liable with the driver of the said vehicle for damages
incurred by passengers or third persons as a consequence of injuries or
death sustained in the operation of the said vehicle, the Court did so to
correct the erroneous ndings of the Court of Appeals that the liability
of the registered owner or operator of a passenger vehicle is merely
subsidiary, as contemplated in Art. 103 of the Revised Penal Code. In
no case did the Court exempt the actual owner of the passenger vehicle
from liability. On the contrary, it adhered to the rule followed in the cases of
Erezo vs. Jepte, Tamayo vs. Aquino, a n d De Peralta vs. Mangusang, among
others, that the registered owner or operator has the right to be indemni ed by the
real or actual owner of the amount that he may be required to pay as damage for
the injury caused.
The right to be indemni ed being recognized, recovery by the registered

owner or operator may be made in any form-either by a cross-claim, third-party
complaint, or an independent action. The result is the same. 23
Moreover, while We held in Tamayo that the responsibility of the registered owner
and actual operator of a truck which caused the death of its passenger is not solidary, We
noted therein that the same is due to the fact that the action instituted was one for breach
of contract, to wit:
The decision of the Court of Appeals is also attacked insofar as it holds
that inasmuch as the third-party defendant had used the truck on a route not
covered by the registered owner's franchise, both the registered owner and the
actual owner and operator should be considered as joint tortfeasors and should
be made liable in accordance with Article 2194 of the Civil Code. This Article is as
follows: TcDAHS
Art. 2194. The responsibility of two or more persons who are liable for a
quasi-delict is solidary.
But the action instituted in the case at bar is one for breach of
contract, for failure of the defendant to carry safely the deceased for
her destination. The liability for which he is made responsible, i.e., for
the death of the passenger, may not be considered as arising from a
quasi-delict. As the registered owner Tamayo and his transferee Rayos
may not be held guilty of tort or a quasi-delict; their responsibility is not
solidary as held by the Court of Appeals.
The question that poses, therefore, is how should the holder of the
certificate of public convenience, Tamayo, participate with his transferee, operator
Rayos, in the damages recoverable by the heirs of the deceased passenger, if their
liability is not that of Joint tortfeasors in accordance with Article 2194 of the Civil
Code. The following considerations must be borne in mind in determining this
question. As Tamayo is the registered owner of the truck, his responsibility to the
public or to any passenger riding in the vehicle or truck must be direct, for the
reasons given in our decision in the case of Erezo vs. Jepte, supra, as quoted
above. But as the transferee, who operated the vehicle when the passenger died,
is the one directly responsible for the accident and death he should in turn be
made responsible to the registered owner for what the latter may have been
adjudged to pay. In operating the truck without transfer thereof having been
approved by the Public Service Commission, the transferee acted merely as agent
of the registered owner and should be responsible to him (the registered owner),
for any damages that he may cause the latter by his negligence. 24
However, it must be noted that the case at hand does not involve a breach of
contract of carnage, as in Tamayo, but a tort or quasi-delict under Article 2176, 25 in
relation to Article 2180 26 of the New Civil Code. As such, the liability for which petitioner is
being made responsible actually arises not from a pre-existing contractual relation
between petitioner and the deceased, but from a damage caused by the negligence of its
employee. Petitioner cannot, therefore, rely on our ruling in Tamayo and escape its solidary
liability for the liability of the employer for the negligent conduct of its subordinate is direct
and primary, subject only to the defense of due diligence in the selection and supervision
of the employee. 27
Indeed, this Court has consistently been of the view that it is for the better
protection of the public for both the owner of record and the actual operator to be
adjudged jointly and severally liable with the driver. 28 As aptly stated by the appellate
court, "the principle of holding the registered owner liable for damages notwithstanding
that ownership of the offending vehicle has already been transferred to another is
designed to protect the public and not as a shield on the part of unscrupulous transferees
of the vehicle to take refuge in, inorder to free itself from liability arising from its own
negligent act." 29
Hence, considering that the negligence of driver Gimena was su ciently proven by
the records of the case, and that no evidence of whatever nature was presented by
petitioner to support its defense of due diligence in the selection and supervision of its
employees, petitioner, as the employer of Gimena, may be held liable for damages arising
from the death of respondent Yu's wife.
WHEREFORE , premises considered, the instant petition is DENIED . The Decision
and Resolution, dated September 9, 2005 and August 8, 2006, respectively, of the Court of
Appeals in CA-G.R. CV No. 84175 are hereby AFFIRMED .
SO ORDERED. SDIaCT
Velasco, Jr., Del Castillo, * Villarama, Jr. and Reyes, JJ., concur.
Footnotes
* Designated Acting Member in lieu of Associate Justice Francis H. Jardeleza, per Special Order
No. 1934 dated February 11, 2015.
1. Penned by Associate Justice Rodrigo V. Cosico, with Associate Justices Rebecca De Guia-
Salvador and Arcangelita Romilla-Lontok concurring; rollo, pp. 23-30.
2. Id. at 32-33.
3. Id. at 136.
4. Id. at 24.
5. Id. at 137.
6. Penned by Presiding Judge Rebecca R. Mariano, id. at 136-140.
7. Id. at 140.
8. BA Finance Corp. v. Court of Appeals, G.R. No. 98275, November 13, 1992, 215 SCRA 715,
720.
9. Rollo, pp. 32-33.

10. Filipinas Synthetic Fiber Corporation v. De los Santos, et al., G.R. No. 152033, March 16,
2011, 645 SCRA 463, 468, citing Estacion v. Bernardo, 518 Phil. 388, 398 (2006), citing
Yambao v. Zuñiga, 463 Phil. 650, 657 (2003).
11. Lampesa v. De Vera, 569 Phil. 14, 20 (2008), citing Yambao v. Zuñiga, supra, at 657-658.
12. Philippine Health-Care Providers, Inc. (Maxicare) v. Estrada, 566 Phil. 603, 610 (2008), citing
Ilao-Quianay v. Mapile, 510 Phil. 736, 744-745 (2005); Fuentes v. Court of Appeals, 335
Phil. 1163, 1168-1169 (1997).
13. Philippine National Railways v. Court of Appeals, et al., 562 Phil. 141, 148 (2007), citing
Corliss v. The Manila Railroad Company, 137 Phil. 101, 107 (1969).
14. Philippine Hawk Corporation v. Vivian Tan Lee, 626 Phil. 483, 494 (2010), citing Achevara v.
Ramos, 617 Phil. 72, 85 (2009).
15. Pereña v. Zarate, G.R. No. 157917, August 29, 2012, 679 SCRA 209, 230, citing Layugan v.
Intermediate Appellate Court, 249 Phil. 363, 373 (1988), citing Black Law Dictionary, Fifth
Edition, p. 930.
16. Rollo, p. 8.
17. Id. at 103.
Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.
xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged
in any business or industry.
19. Lampesa v. De Vera, et al., supra note 11, at 20-21, citing Syki v. Begasa, 460 Phil. 381, 386
(2003).
20. 116 Phil. 478 (1962).
21. 105 Phil. 949 (1959).

22. 202 Phil. 715 (1982).
23. Jereos v. Court of Appeals, et al., supra, at 720-721. (Emphasis ours; citations omitted)
24. Tamayo v. Aquino, supra note 21, at 953. (Emphasis ours)
pre-existing contractual relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter. (1902a)
26. Supra note 17.
27. Rafael Reyes Trucking Corporation v. People of the Philippines, 386 Phil. 41, 57 (2000).
28. Zamboanga Transportation Company, Inc. v. Court of Appeals, 141 Phil. 406, 413 (1969),
citing the Decision of Court of Appeals Justice Fred Ruiz Castro, citing Dizon v. Octavio,
et al., 51 O.G. No. 8, 4059-4061; Castanares v. Pages, CA-G.R. 21809-R, March 8, 1962;
Redado v. Bautista, CA-G.R. 19295-R, Sept. 19, 1961; Bering v. Noeth, CA-G.R. 28483-R,
April 29, 1965.
29. Rollo, p. 29.

FIRST DIVISION
[G.R. No. L-40570. January 30, 1976.]
TEODORO C. UMALI , petitioner, vs. HON. ANGEL BACANI, in his capacity

as Presiding Judge of Branch IX of the Court of First Instance of
Pangasinan and FIDEL H. SAYNES , respondents.
Julian M. Armas for the petitioner.

Antonino de los Reyes for the private respondent.
SYNOPSIS
Defendant as owner and manager of the Alcala Electric Plant was ordered to pay
damages by the lower court which found the death by electrocution of a 3 year old boy
as due to defendant's fault or negligence. Petitioner claims that he could not be held
liable under the concept of quasi-delict or tort as owner and manager because the
proximate cause of the boy's death by electrocution could not be due to any negligence
on his part, but rather to a fortuitous event — the storm that caused the banana plants
to fall and cut the electric line — pointing out the absence of negligence on the part of
his employee who tried to have the line repaired and the presence of negligence of the
parents of the child in allowing him to leave his house during that time. The Supreme
Court found that a series of negligence on the part of the defendant's employee
resulted in the death of the victim by electrocution, to wit: the defendant did not cut
down the banana plants which are taller than the electric posts to eliminate that source
of danger to the electric line; that after the storm they did not cut off the ow of
electricity from the lines pending inspection of the wires to see if they had been cut;
and lastly, in not taking precautions to prevent anybody from approaching the live
wires.
Decision affirmed.
SYLLABUS
1. DAMAGES; QUASI-DELICT; NEGLIGENCE. — Art. 2179 of the Civil Code

provides that if the negligence of the plaintiff was only contributory, the immediate and
proximate cause of the injury being the defendant's lack of care, the plaintiff may
recover damages, but the court shall mitigate the damages to be awarded. This law
may be availed of by the petitioner but does not exempt him from liability.
2. ID.; ID.; ID.; EMPLOYER AND EMPLOYEE; NEGLIGENCE OF EMPLOYEE IS
PRESUMED TO BE THE NEGLIGENCE OF EMPLOYER. — The negligence of the
employee is presumed to be negligence of the employer because the employer is
supposed to exercise supervision over the work of the employee. The liability of the
employer is primary and direct. In fact the proper defense for the employer to raise so
that he may escape liability is to prove that he exercised the diligence of the good
father of the family to prevent damage not only in the selection of his employees but
also in adequately supervising them over their work.
DECISION
ESGUERRA , J : p
Petition for certiorari to review the decision of the Court of First Instance of
Pangasinan, Branch IX, in Civil Case No. U-2412, entitled, "Fidel H. Saynes, plaintiff-
appellee versus Teodoro C. Umali, defendant-appellant", which found the death by
electrocution of Manuel Saynes, a boy of 3 years and 8 months, as "due to the fault or
negligence of the defendant (Umali) as owner and manager of the Alcala Electric Plant;
although the liability of defendant is mitigated by contributory negligence of the
parents of the boy "in not providing for the proper and adequate supervision and
control over their son." The dispositive part of the decision reads as follows: cdrep
"Wherefore, the Court hereby renders judgment in favor of the

plaintiff by ordering the defendant to pay to the plaintiff the sum of
Five Thousand Pesos (P5,000.00) for the death of his son, Manuel
Saynes; the sum of One Thousand Two Hundred Pesos (P1,200.00)
for actual expenses for and in connection with the burial of said
deceased child, and the further sum of Three Thousand Pesos
(P3,000.00) for moral damages and Five Hundred (P500.00) Pesos as
reasonable attorney's fee, or a total of Nine Thousand Seven Hundred
(P9,700.00) Pesos, and to pay the costs of this suit. It Is So Ordered."
Undisputed facts appearing of record are:
"On May 14, 1972, a storm with strong rain hit the Municipality
of Alcala, Pangasinan, which started from 2:00 o'clock in the
afternoon and lasted up to about midnight of the same day. During
the storm, the banana plants standing on an elevated ground along
the barrio road in San Pedro Ili of said municipality and near the
transmission line of the Alcala Electric Plant were blown down and
fell on the electric wire. As a result, the live electric wire was cut, one
end of which was left hanging on the electric post and the other fell to
the ground under the fallen banana plants.
"On the following morning, at about 9:00 o'clock barrio captain
Luciano Bueno of San Pedro Ili who was passing by saw the broken
electric wire and so he warned the people in the place not to go near
the wire for they might get hurt. He also saw Cipriano Baldomero, a
laborer of the Alcala Electric Plant near the place and noti ed him
right then and there of the broken line and asked him to x it, but the
latter told the barrio captain that he could not do it but that he was
going to look for the lineman to fix it.
"Sometime after the barrio captain and Cipriano Baldomero
had left the place, a small boy of 3 years and 8 months old by the
name of Manuel P. Saynes, whose house is just on the opposite side
of the road, went to the place where the broken line wire was and got
in contact with it. The boy was electrocuted and he subsequently
died. It was only after the electrocution of Manuel Saynes that the
broken wire was xed at about 10:00 o'clock on the same morning by
the lineman of the electric plant."
Petitioner claims that he could not be liable under the concept of quasi-delict or
tort as owner and manager of the Alcala Electric Plant because the proximate cause of
the boy's death by electrocution could not be due to any negligence on his part, but
rather to a fortuitous event — the storm that caused the banana plants to fall and cut
the electric line — pointing out the absence of negligence on the part of his employee
Cipriano Baldomero who tried to have the line repaired and the presence of negligence
of the parents of the child in allowing him to leave his house during that time.prLL
A careful examination of the record convinces Us that a series of negligence on

the part of defendant's employees in the Alcala Electric Plant resulted in the death of
the victim by electrocution. First, by the very evidence of the defendant, there were big
and tall banana plants at the place of the incident standing on an elevated ground which
were about 30 feet high and which were higher than the electric post supporting the
electric line, and yet the employees of the defendant who, with ordinary foresight, could
have easily seen that even in case of moderate winds the electric line would be
endangered by banana plants being blown down, did not even take the necessary
precaution to eliminate that source of danger to the electric line. Second, even after the
employees of the Alcala Electric Plant were already aware of the possible damage the
storm of May 14, 1972, could have caused their electric lines, thus becoming a possible
threat to life and property, they did not cut off from the plant the ow of electricity
along the lines, an act they could have easily done pending inspection of the wires to
see if they had been cut. Third, employee Cipriano Baldomero was negligent on the
morning of the incident because even if he was already made aware of the live cut wire,
he did not have the foresight to realize that the same posed a danger to life and
property, and that he should have taken the necessary precaution to prevent anybody
from approaching the live wire; instead Baldomero left the premises because what was
foremost in his mind was the repair of the line, obviously forgetting that if left
unattended to it could endanger life and property.
On defendant's argument that the proximate cause of the victim's death could be
attributed to the parents' negligence in allowing a child of tender age to go out of the
house alone, We could readily see that because of the aforementioned series of
negligence on the part of defendants' employees resulting in a live wire lying on the
premises without any visible warning of its lethal character, anybody, even a
responsible grown up or not necessarily an innocent child, could have met the same
fate that befell the victim. It may be true, as the lower Court found out, that the
contributory negligence of the victim's parents in not properly taking care of the child,
which enabled him to leave the house alone on the morning of the incident and go to a
nearby place (cut wire was very near the house where victim was living) where the fatal
fallen wire electrocuted him, might mitigate respondent's liability, but We cannot agree
with petitioner's theory that the parents' negligence constituted the proximate cause of
the victim's death because the real proximate cause was the fallen live wire which
posed a threat to life and property on that morning due to the series of negligence
adverted to above committed by defendants' employees and which could have killed
any other person who might by accident get into contact with it. Stated otherwise, even
if the child was allowed to leave the house unattended due to the parents' negligence,
he would not have died that morning where it not for the cut live wire he accidentally
touched. cdphil
Art. 2179 of the Civil Code provides that if the negligence of the plaintiff (parents
of the victim in this case) was only contributory, the immediate and proximate cause of
the injury being the defendants' lack of due care, the plaintiff may recover damages, but
the courts shall mitigate the damages to be awarded. This law may be availed of by the
petitioner but does not exempt him from liability.
Petitioner's liability for injury caused by his employees' negligence is well de ned
in par. 4, of Article 2180 of the Civil Code, which states:
"The owner and manager of the establishment or enterprise are
likewise responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on the
occasion of their functions."
The negligence of the employee is presumed to be the negligence of the
employer because the employer is supposed to exercise supervision over the work of
the employees. This liability of the employer is primary and direct (Standard Vacuum Oil
Co. vs. Tan and Court of Appeals, 107 Phil. 109). In fact the proper defense for the
employer to raise so that he may escape liability is to prove that he exercised the
diligence of the good father of the family to prevent damage not only in the selection of
his employees but also in adequately supervising them over their work. This defense
was not adequately proven as found by the trial Court, and We do not nd any su cient
reason to deviate from its finding.
Notwithstanding diligent efforts, We fail to find any reversible error committed by
the trial Court in this case, either in its appreciation of the evidence on questions of
facts or on the interpretation and application of laws governing quasi-delicts and
liabilities emanating therefrom. The inevitable conclusion is that no error amounting to
grave abuse of discretion was committed and the decision must be left untouched.
WHEREFORE, the decision of respondent Court dated June 27, 1974 is affirmed.
SO ORDERED.
Teehankee (Chairman), Makasiar, Muñoz Palma and Martin, JJ., concur.

THIRD DIVISION
[G.R. No. 51806. November 8, 1988.]
CIVIL AERONAUTICS ADMINISTRATION , petitioner, vs. COURT OF

APPEALS and ERNEST E. SIMKE , respondents.
The Solicitor General for petitioner.

Ledesma, Guytingco, Velasco & Associates for respondent Ernest E. Simke.
SYLLABUS
1. ADMINISTRATIVE LAW; ADMINISTRATIVE AGENCY; CIVIL AERONAUTICS

ADMINISTRATION. — If the power to sue and be sued has been granted without
qualification, it can include a claim based on tort or quasi-delict.
2. ID.; ID.; IMMUNITY FROM SUIT DETERMINED BY THE OBJECTS FOR ITS CREATION.
— Not all government entities, whether corporate or non-corporate, are immune from suits.
Immunity from suits is determined by the character of the objects for which the entity was
organized.
3. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT BY THE TRIAL COURT, BINDING
UPON THE SUPREME COURT. — The trial court's findings during its ocular inspection of
the MIA terrace that the elevation where plaintiff slipped was a dangerous sliding step and
the proximate cause of plaintiff's injury are factual findings binding upon the Supreme
Court.
4. CIVIL LAW; TORTS AND DAMAGES; QUASI-DELICT; BASIS OF LIABILITY. — Article
2176 of the Civil Code which provides the basis for liability for quasi-delict. CAA knew of
the existence of the dangerous elevation. Its failure to have it repaired or altered in order to
eliminate the existing hazard constitutes such negligence as to warrant a finding of liability
based on quasi-delict upon CAA.
5. ID.; ID.; ID.; NEGLIGENCE; TEST TO DETERMINE EXISTENCE THEREOF. — As
formulated in the case of Picart v. Smith, 37 Phil. 809 (1918) the test by which to
determine the existence of negligence may be stated as follows: Did the defendant in
doing the alleged negligent act use that reasonable care and caution which an ordinarily
prudent man would have used in the same situation? If not, then he is guilty of negligence.
6. ID.; ID.; ID.; LACK OF CONTRIBUTORY NEGLIGENCE. — No contributory negligence
can be imputed to the private respondent, considering the following test formulated in the
early case of Picart v. Smith, 37 Phil. 809 (1918). The private respondent could not have
reasonably foreseen the harm that would befall him, considering the attendant factual
circumstances. Even if the private respondent had been looking where he was going, the
step in question could not easily be noticed because of its construction.
7. ID.; ID.; ID.; LIABILITY FOR DAMAGES IMPLIED FROM THE GRANT OF POWER TO
SUE AND BE SUED. — The liability of CAA to answer for damages, whether actual, moral or
exemplary, cannot be seriously doubted in view of the conferment of the power to sue and
be sued upon it.
8. ID.; ID.; ID.; ACTUAL OR COMPENSATORY DAMAGE. — Article 2199 of the Civil Code,
with respect to actual or compensatory damages, mandates that the same be proven.
Private respondent claims P15,589.55 representing medical and hospitalization bills
P20,000.00 spent as transportation expenses of two layers who represented private
respondent abroad and the publication of the postponement notices of the wedding, were
found by the court to have been duly proven.
9. ID.; ID.; ID.; MORAL DAMAGES. — The court holds private respondent entitled to the
award of P30,000.00 as moral damages because of the physical suffering and physical
injuries caused by the negligence of the CAA (Arts. 2217 and 2R 19 (2), New Civil Code.)
10. ID.; ID.; ID.; EXEMPLARY DAMAGES; AWARD DUE TO DEFENDANT'S GROSS
NEGLIGENCE. — Gross negligence is equivalent to the term "notorious negligence" and
consists in the failure to exercise even slight care (Caunan v. Compania General de
Tabacos, 56 Phil. 542 (1932)) can be attributed to the CAA for its failure to remedy the
dangerous condition of the questioned elevation. The award of P40,000.00 by the trial
court as exemplary damages appropriately underscores the point that as an entity charged
with providing service to the public, the CAA, like all other entities serving the public, has
the obligation to provide the public with reasonably safe service.
11. ID.; ID.; ID.; ATTORNEY'S FEES. — The award of attorney's fees is also upheld
considering that under Art. 2208 (1) of the Civil Code, the same may be awarded whenever
exemplary damages are awarded, as in this case, and, at any rate, under Art. 2208 (11), the
Court has the discretion to grant the same when it is just and equitable.
DECISION
CORTES , J : p
Assailed in this petition for review on certiorari is the decision of the Court of Appeals
affirming the trial court decision which reads as follows:
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff the
amount of P15,589.55 as full reimbursement of his actual medical and hospital
expenses, with interest at the legal rate from the commencement of the suit; the
amount of P20,200.00 as consequential damages; the amount of P30,000.00 as
moral damages; the amount of P40,000.00 as exemplary damages; the further
amount of P20,000.00 as attorney's fees and the costs [Rollo, p. 24].
The facts of the case are as follows:

Private respondent is a naturalized Filipino citizen and at the time of the incident was the
Honorary Consul General of Israel in the Philippines.
In the afternoon of December 13, 1968, private respondent with several other persons
went to the Manila International Airport to meet his future son-in-law. In order to get a
better view of the incoming passengers, he and his group proceeded to the viewing deck
or terrace of the airport.
While walking on the terrace, then filled with other people, private respondent slipped over
an elevation about four (4) inches high at the far end of the terrace. As a result, private
respondent fell on his back and broke his thigh bone.
The next day, December 14, 1963, private respondent was operated on for about three
hours.
Private respondent then filed an action for damages based on quasi-delict with the Court
of First Instance of Rizal, Branch VII against petitioner Civil Aeronautics Administration or
CAA as the entity empowered "to administer, operate, manage, control, maintain and
develop the Manila International Airport . . ." [Sec. 32 (24), R.A. 776].
Said claim for damages included, aside from the medical and hospital bills, consequential
damages for the expenses of two lawyers who had to go abroad in private respondent's
stead to finalize certain business transactions and for the publication of notices
announcing the postponement of private respondent's daughter's wedding which had to
be cancelled because of his accident [Record on Appeal, p. 5].
Judgment was rendered in private respondent's favor prompting petitioner to appeal to
the Court of Appeals. The latter affirmed the trial court's decision. Petitioner then filed with
the same court a Motion for Reconsideration but this was denied.
Petitioner now comes before this Court raising the following assignment of errors:
1. The Court of Appeals gravely erred in not holding that the present suit
against the CAA is really a suit against the Republic of the Philippines which
cannot be sued without its consent, which was not given in this case.
2. The Court of Appeals gravely erred in finding that the injuries of respondent
Ernest E. Simke were due to petitioner's negligence — although there was no
substantial evidence to support such finding; and that the inference that the
hump or elevation in the surface of the floor area of the terrace of the (old) MIA
building is dangerous just because said respondent tripped over it is manifestly
mistaken — circumstances that justify a review by this Honorable Court of the
said finding of fact of respondent appellate court (Garcia v. Court of Appeals, 33
SCRA 622; Ramos v. CA, 63 SCRA 331.)
3. The Court of Appeals gravely erred in ordering petitioner to pay actual,

consequential, moral and exemplary damages, as well as attorney's fees to
respondent Simke — although there was no substantial and competent proof to
support said awards [Rollo, pp. 93-94].
I
Invoking the rule that the State cannot be sued without its consent, petitioner contends
that being an agency of the government, it cannot be made a party-defendant in this case.
This Court has already held otherwise in the case of National Airports Corporation v.
Teodoro, Sr. [91 Phil. 203 (1952)].
Petitioner contends that the said ruling does not apply in this case because: First, in the
Teodoro case, the CAA was sued only in a substituted capacity, the National Airports
Corporation being the original party. Second, in the Teodoro case, the cause of action was
contractual in nature while here, the cause of action is based on a quasi-delict. Third, there
is no specific provision in Republic Act No. 776, the law governing the CAA, which would
justify the conclusion that petitioner was organized for business and not for governmental
purposes. [Rollo, pp. 94-97].
Such arguments are untenable.
First, the Teodoro case, far from stressing the point that the CAA was only substituted for
the National Airports Corporation, in fact treated the CAA as the real party in interest when
it stated that:
xxx xxx xxx
. . . To all legal intents and practical purposes the National Airports Corporation is
dead and the Civil Aeronautics Administration is its heir or legal representative,
acting by the law of its creation upon its own lights and in its own name. The
better practice then should have been to make the Civil Aeronautics
Administration the third party defendant instead of the National Airports
Corporation.[National Airports Corp. v. Teodoro, supra, p. 208.]
xxx xxx xxx
Second, the Teodoro case did not make any qualification or limitation as to whether or not
the CAA's power to sue and be sued applies only to contractual obligations. The Court in
the Teodoro case ruled that Sections 3 and 4 of Executive Order 365 confer upon the CAA,
without any qualification, the power to sue and be sued, albeit only by implication.
Accordingly, this Court's pronouncement that where such power to sue and be sued has
been granted without any qualification, it can include a claim based on tort or quasi-delict
[Rayo v. Court of First Instance of Bulacan, G.R. Nos. 55273-83, December 19, 1981, 110
SCRA 456] finds relevance and applicability to the present case.
Third, it has already been settled in the Teodoro case that the CAA as an agency is not
immune from suit, it being engaged in functions pertaining to a private entity.
xxx xxx xxx
The Civil Aeronautics Administration comes under the category of a private entity.
Although not a body corporate it was created, like the National Airports
Corporation, not to maintain a necessary function of government, but to run what
is essentially a business, even if revenues be not its prime objective but rather the
promotion of travel and the convenience of the travelling public. It is engaged in
an enterprise which, far from being the exclusive prerogative of state, may, more
than the construction of public roads, be undertaken by private concerns.
[National Airports Corp. v. Teodoro, supra, p. 207.]
xxx xxx xxx
True, the law prevailing in 1952 when the Teodoro case was promulgated was Exec. Order
365 (Reorganizing the Civil Aeronautics Administration and Abolishing the National
Airports Corporation). Republic Act No. 776 (Civil Aeronautics Act of the Philippines),
subsequently enacted on June 20, 1952, did not alter the character of the CAA's objectives
under Exec. Order 365. The pertinent provisions cited in the Teodoro case, particularly
Secs. 3 and 4 of Exec. Order 365, which led the Court to consider the CAA in the category
of a private entity were retained substantially in Republic Act 776, Sec. 32 (24) and (25).
Said Act provides:
Sec. 32. Powers and Duties of the Administrator. — Subject to the general
control and supervision of the Department Head, the Administrator shall have
among others, the following powers and duties:
xxx xxx xxx
(24) To administer, operate, manage, control, maintain and develop the
Manila International Airport and all government-owned aerodromes except those
controlled or operated by the Armed Forces of the Philippines including such
powers and duties as: (a) to plan, design, construct, equip, expand, improve, repair
or alter aerodromes or such structures, improvement or air navigation facilities;
(b) to enter into, make and execute contracts of any kind with any person, firm, or
public or private corporation or entity;. . . .
(25) To determine, fix, impose, collect and receive landing fees, parking space
fees, royalties on sales or deliveries, direct or indirect, to any aircraft for its use of
aviation gasoline, oil and lubricants, spare parts, accessories and supplies, tools,
other royalties, fees or rentals for the use of any of the property under its
management and control.
xxx xxx xxx
From the foregoing, It can be seen that the CAA is tasked with private or non-governmental
functions which operate to remove it from the purview of the rule on State immunity from
suit. For the correct rule as set forth in the Teodoro case states:
xxx xxx xxx
Not all government entities, whether corporate or non-corporate, are immune from
suits. Immunity from suits is determined by the character of the objects for which
the entity was organized. The rule is thus stated in Corpus Juris:
Suits against State agencies with relation to matters in which they
have assumed to act in private or non-governmental capacity, and various
suits against certain corporations created by the state for public purposes,
but to engage in matters partaking more of the nature of ordinary business
rather than functions of a governmental or political character, are not
regarded as suits against the state. The latter is true, although the state
may own stock or property of such a corporation for by engaging in
business operations through a corporation, the state divests itself so fan of
its sovereign character, and by implication consents to suits against the
corporation. (59 C.J., 313) [National Airports Corporation v. Teodoro, supra,
pp. 206-207; Emphasis supplied.]
This doctrine has been reaffirmed in the recent case of Malong v. Philippine National
Railways [G.R. No. L-49930, August 7, 1985, 138 SCRA 63], where it was held that the
Philippine National Railways, although owned and operated by the government, was not
immune from suit as it does not exercise sovereign but purely proprietary and business
functions. Accordingly, as the CAA was created to undertake the management of airport
operations which primarily involve proprietary functions, it cannot avail of the immunity
from suit accorded to government agencies performing strictly governmental functions.
II
Petitioner tries to escape liability on the ground that there was no basis for a finding of
negligence. There can be no negligence on its part, it alleged, because the elevation in
question "had a legitimate purpose for being on the terrace and was never intended to trip
down people and injure them. It was there for no other purpose but to drain water on the
floor area of the terrace" [Rollo, p. 99].
To determine whether or not the construction of the elevation was done in a negligent
manner, the trial court conducted an ocular inspection of the premises.
xxx xxx xxx
. . . This Court after its ocular inspection found the elevation shown in Exhs. A or
6-A where plaintiff slipped to be a step, a dangerous sliding step, and the
proximate cause of plaintiffs injury . . .
xxx xxx xxx

This Court during its ocular inspection also observed the dangerous and defective
condition of the open terrace which has remained unrepaired through the years. It
has observed the lack of maintenance and upkeep of the MIA terrace, typical of
many government buildings and offices. Aside from the litter allowed to
accumulate in the terrace, pot holes cause by missing tiles remained unrepaired
and unattented. The several elevations shown in the exhibits presented were
verified by this Court during the ocular inspection it undertook. Among these
elevations is the one (Exh. A) where plaintiff slipped. This Court also observed the
other hazard, the slanting or sliding step (Exh. B) as one passes the entrance door
leading to the terrace [Record on Appeal, U.S., pp. 56 and 59; Italics supplied.]
The Court of Appeals further noted that:

The inclination itself is an architectural anomaly for as stated by the said witness,
it is neither a ramp because a ramp is an inclined surface in such a way that it will
prevent people or pedestrians from sliding. But if, it is a step then it will not serve
its purpose, for pedestrian purposes. (tsn, p. 35, id.) [Rollo. p. 29.]
These factual findings are binding and conclusive upon this Court. Hence, the CAA cannot
disclaim its liability for the negligent construction of the elevation since under Republic Act
No. 776, it was charged with the duty of planning, designing, constructing, equipping,
expanding, improving, repairing or altering aerodromes or such structures, improvements
or air navigation facilities [Section 32, supra, R.A. 776]. In the discharge of this obligation,
the CAA is duty-bound to exercise due diligence in overseeing the construction and
maintenance of the viewing deck or terrace of the airport.
It must be borne in mind that pursuant to Article 1173 of the Civil Code, "(t)he fault or
negligence of the obligor consists in the omission of that diligence which is required by the
nature of the obligation and corresponds with the circumstances of the person, of the time
and of the place." Here, the obligation of the CAA in maintaining the viewing deck, a facility
open to the public, requires that CAA insure the safety of the viewers using it. As these
people come to the viewing deck to watch the planes and passengers, their tendency
would be to look to where the planes and the incoming passengers are and not to look
down on the floor or pavement of the viewing deck. The CAA should have thus made sure
that no dangerous obstructions or elevations exist on the floor of the deck to prevent any
undue harm to the public.
The legal foundation of CAA's liability for quasi-delict can be found in Article 2176 of the
Civil Code which provides that "(w)hoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done. . . ." As the CAA
knew of the existence of the dangerous elevation which it claims though, was made
precisely in accordance with the plans and specifications of the building for proper
drainage of the open terrace [See Record on Appeal, pp. 13 and 57; Rollo, p. 39], its failure
to have it repaired or altered in order to eliminate the existing hazard constitutes such
negligence as to warrant a finding of liability based on quasi-delict upon CAA.
The Court finds the contention that private respondent was, at the very least, guilty of
contributory negligence, thus reducing the damages that plaintiff may recover,
unmeritorious. Contributory negligence under Article 2179 of the Civil Code contemplates
a negligent act or omission on the part of the plaintiff, which although not the proximate
cause of his injury, contributed to his own damage, the proximate cause of the plaintiffs
own injury being the defendant's lack of due care. In the instant case, no contributory
negligence can be imputed to the private respondent, considering the following test
formulated in the early case of Picart v. Smith, 37 Phil. 809 (1918):
may be stated as follows: Did the defendant in doing the alleged negligent act
use that reasonable care and caution which an ordinarily prudent man would
have used in the same situation? If not, then he is guilty of negligence. The law
here in effect adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman law. The existence of the
negligence in a given case is not determined by reference to the personal
judgment of the actor in the situation before him. The law considers what would
be reckless, blameworthy, or negligent in the man of ordinary intelligence and
prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given
situation must of course be always determined in the light of human experience
and in view of the facts involved in the particular case. Abstract speculations
cannot be here of much value but this much can be profitably said: Reasonable
men govern their conduct by the circumstances which are before them or known
to them. They are not, and are not supposed to be omniscient of the future. Hence
they can be expected to take care only when there is something before them to
suggest or warn of danger. Could a prudent man, in the case under consideration,
foresee harm as a result of the course actually pursued? If so, it was the duty of
the actor to take precautions to guard against that harm. Reasonable foresight of
harm, followed by the ignoring of the suggestion born of this prevision, is always
necessary before negligence can be held to exist . . . [Picart v. Smith, supra, p. 813;
emphasis supplied.]
The private respondent, who was the plaintiff in the case before the lower court, could
not have reasonably foreseen the harm that would befall him, considering the attendant
factual circumstances. Even if the private respondent had been looking where he was
going, the step in question could not easily be noticed because of its construction. As
the trial court found:
In connection with the incident testified to, a sketch, Exhibit O, shows a section of
the floorings on which plaintiff had tripped. This sketch reveals two pavements
adjoining each other, one being elevated by four and one-fourth inches than the
other. From the architectural standpoint the higher pavement is a step. However,
unlike a step commonly seen around, the edge of the elevated pavement slanted
outward as one walks to the interior of the terrace. The length of the inclination
between the edges of the two pavements is three inches. Obviously, plaintiff had
stepped on the inclination because had his foot landed on the lower pavement he
would not have lost his balance. The same sketch shows that both pavements
including the inclined portion are tiled in red cement, and as shown by the
photograph Exhibit A, the lines of the tilings are continuous. It would therefore be
difficult for a pedestrian to see the inclination especially where there are plenty of
persons in the terrace as was the situation when plaintiff fell down. There was no
warning sign to direct one's attention to the change in the elevation of the
floorings. [Rollo, pp. 28-29.]
III
Finally, petitioner appeals to this Court the award of damages to private respondent. The
liability of CAA to answer for damages, whether actual, moral or exemplary, cannot be
seriously doubted in view of the conferment of the power to sue and be sued upon it,
which, as held in the case of Rayo v. Court of First Instance, supra, includes liability on a
claim for quasi-delict. In the aforestated case, the liability of the National Power
Corporation to answer for damages resulting from its act of sudden, precipitate and
simultaneous opening of the Angat Dam, which caused the death of several residents of
the area and the destruction of properties, was upheld since the grant of the power to sue
and be sued upon it necessarily implies that it can be held answerable for its tortious acts
or any wrongful act for that matter.
With respect to actual or compensatory damages, the law mandates that the same be
proven.
Art. 2199. Except as provided by law or by stipulation, one is entitled to an
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 [New Civil Code].
Private respondent claims P15,589.55 representing medical and hospitalization bills. This
Court finds the same to have been duly proven through the testimony of Dr. Ambrosio
Tangco, the physician who attended to private respondent (Rollo, p. 26 ) and who identified
Exh. "H" which was his bill for professional services [Rollo, p. 31].
Concerning the P20,200.00 alleged to have been spent for other expenses such as the
transportation of the two lawyers who had to represent private respondent abroad and the
publication of the postponement notices of the wedding, the Court holds that the same
had also been duly proven. Private respondent had adequately shown the existence of
such losses and the amount thereof in the testimonies before the trial court [CA decision,
p. 8]. At any rate, the findings of the Court of Appeals with respect to this are findings of
facts [One Heart Sporting Club, Inc. v. Court of Appeals, G.R. Nos. 53790-53972, Oct. 23,
1981 , 108 SCRA 416] which, as had been held time and again, are, as a general rule,
conclusive before this Court [Sese v. Intermediate Appellate Court, G.R. No. 66186, July 31,
1987, 152 SCRA 585].
With respect to the P30,000.00 awarded as moral damages, the Court holds private
respondent entitled thereto because of the physical suffering and physical injuries caused
by the negligence of the CAA [Arts. 2217 and 2219 (2), New Civil Code].
With respect to the award of exemplary damages, the Civil Code explicitly states:
Art. 2229. Exemplary or corrective damages are imposed, by way of example
or correction for the public good, in addition to the moral, temperate, liquidated or
compensatory damages.
Art. 2231. In quasi-delicts, exemplary damages may be granted if the
defendant acted with gross negligence.
Gross negligence which, according to the Court, is equivalent to the term "notorious
negligence" and consists in the failure to exercise even slight care [Caunan v. Compania
General de Tabacos, 56 Phil. 542 (1932)] can be attributed to the CAA for its failure to
remedy the dangerous condition of the questioned elevation or to even post a warning
sign directing the attention of the viewers to the change in the elevation of the floorings
notwithstanding its knowledge of the hazard posed by such elevation [Rollo, pp. 28-29;
Record on Appeal, p. 57]. The wanton disregard by the CAA of the safety of the people
using the viewing deck, who are charged an admission fee, including the petitioner who
paid the entrance fees to get inside the vantage place [CA decision, p. 2; Rollo, p. 25] and
are, therefore, entitled to expect a facility that is properly and safely maintained — justifies
the award of exemplary damages against the CAA as a deterrent and by way of example or
correction for the public good. The award of P40,000.00 by the trial court as exemplary
damages appropriately underscores the point that as an entity charged with providing
service to the public, the CAA, like all other entities serving the public, has the obligation to
provide the public with reasonably safe service.
Finally, the award of attorney's fees is also upheld considering that under Art. 2208 (1 ) of
the Civil Code, the same may be awarded whenever exemplary damages are awarded, as in
this case, and, at any rate, under Art. 2208 (11), the Court has the discretion to grant the
same when it is just and equitable.
However, since the Manila International Airport Authority (MIAA) has taken over the
management and operations of the Manila International Airport [renamed Ninoy Aquino
International Airport under Republic Act No. 6639] pursuant to Executive Order No. 778 as
amended by executive Orders Nos. 903 (1983), 909 (1983) and 298 (1987) and under
Section 24 of the said Exec. Order 778, the MIAA has assumed all the debts, liabilities and
obligations of the now defunct Civil Aeronautics Administration (CAA), the liabilities of the
CAA have now been transferred to the MIAA.
WHEREFORE, finding no reversible error, the Petition for review on Certiorari is DENIED and
the decision of the Court of Appeals in CA-G.R. No. 51172-R is AFFIRMED.
SO ORDERED.
Fernan, C .J ., Gutierrez Jr., Feliciano and Bidin JJ ., concur.

THIRD DIVISION
[G.R. No. 156940. December 14, 2004.]
ASSOCIATED BANK (Now WESTMONT BANK) , petitioner, vs . VICENTE

HENRY TAN , respondent.
DECISION
PANGANIBAN , J : p
While banks are granted by law the right to debit the value of a dishonored check
from a depositor's account, they must do so with the highest degree of care, so as not to
prejudice the depositor unduly.
The Case
Before us is a Petition for Review 1 under Rule 45 of the Rules of Court, assailing the
January 27, 2003 Decision 2 of the Court of Appeals (CA) in CA-GR CV No. 56292. The CA
disposed as follows:
"WHEREFORE, premises considered, the Decision dated December 3, 1996,
of the Regional Trial Court of Cabanatuan City, Third Judicial Region, Branch 26,
in Civil Case No. 892-AF is hereby AFFIRMED. Costs against the [petitioner]." 3
The Facts
The CA narrated the antecedents as follows:
"Vicente Henry Tan (hereafter TAN) is a businessman and a regular
depositor-creditor of the Associated Bank (hereinafter referred to as the BANK).
Sometime in September 1990, he deposited a postdated UCPB check with the
said BANK in the amount of P101,000.00 issued to him by a certain Willy Cheng
from Tarlac. The check was duly entered in his bank record thereby making his
balance in the amount of P297,000.00, as of October 1, 1990, from his original
deposit of P196,000.00. Allegedly, upon advice and instruction of the BANK that
the P101,000.00 check was already cleared and backed up by su cient funds,
TAN, on the same date, withdrew the sum of P240,000.00, leaving a balance of
P57,793.45. A day after, TAN deposited the amount of P50,000.00 making his
existing balance in the amount of P107,793.45, because he has issued several
checks to his business partners, to wit:
CHECK NUMBERS DATE AMOUNT
a. 138814 Sept. 29, 1990 P9,000.00

b. 138804 Oct. 8, 1990 9,350.00
c. 138787 Sept. 30, 1990 6,360.00
d. 138847 Sept. 29, 1990 21,850.00
e. 167054 Sept. 29, 1990 4,093.40
f. 138792 Sept. 29, 1990 3,546.00
g. 138774 Oct. 2, 1990 6,600.00
h. 167072 Oct. 10, 1990 9,908.00
i. 168802 Oct. 10, 1990 3,650.00
"However, his suppliers and business partners went back to him alleging
that the checks he issued bounced for insu ciency of funds. Thereafter, TAN,
thru his lawyer, informed the BANK to take positive steps regarding the matter for
he has adequate and su cient funds to pay the amount of the subject checks.
Nonetheless, the BANK did not bother nor offer any apology regarding the
incident. Consequently, TAN, as plaintiff, led a Complaint for Damages on
December 19, 1990, with the Regional Trial Court of Cabanatuan City, Third
Judicial Region, docketed as Civil Case No. 892-AF, against the BANK, as
defendant. SDITAC
"In his [C]omplaint, [respondent] maintained that he ha[d] su cient funds

to pay the subject checks and alleged that his suppliers decreased in number for
lack of trust. As he has been in the business community for quite a time and has
established a good record of reputation and probity, plaintiff claimed that he
suffered embarrassment, humiliation, besmirched reputation, mental anxieties
and sleepless nights because of the said unfortunate incident. [Respondent]
further averred that he continuously lost pro ts in the amount of P250,000.00.
[Respondent] therefore prayed for exemplary damages and that [petitioner] be
ordered to pay him the sum of P1,000,000.00 by way of moral damages,
P250,000.00 as lost pro ts, P50,000.00 as attorney's fees plus 25% of the
amount claimed including P1,000.00 per court appearance. 2004cdasia
"Meanwhile, [petitioner] led a Motion to Dismiss on February 7, 1991, but

the same was denied for lack of merit in an Order dated March 7, 1991.
Thereafter, [petitioner] BANK on March 20, 1991 led its Answer denying, among
others, the allegations of [respondent] and alleged that no banking institution
would give an assurance to any of its client/depositor that the check deposited by
him had already been cleared and backed up by su cient funds but it could only
presume that the same has been honored by the drawee bank in view of the lapse
of time that ordinarily takes for a check to be cleared. For its part, [petitioner]
alleged that on October 2, 1990, it gave notice to the [respondent] as to the return
of his UCPB check deposit in the amount of P101,000.00, hence, on even date,
[respondent] deposited the amount of P50,000.00 to cover the returned check.
"By way of a rmative defense, [petitioner] averred that [respondent] had

no cause of action against it and argued that it has all the right to debit the
account of the [respondent] by reason of the dishonor of the check deposited by
the [respondent] which was withdrawn by him prior to its clearing. [Petitioner]
further averred that it has no liability with respect to the clearing of deposited
checks as the clearing is being undertaken by the Central Bank and in accepting
[the] check deposit, it merely obligates itself as depositor's collecting agent
subject to actual payment by the drawee bank. [Petitioner] therefore prayed that
[respondent] be ordered to pay it the amount of P1,000,000.00 by way of loss of
goodwill, P7,000.00 as acceptance fee plus P500.00 per appearance and by way
of attorney's fees.
"Considering that Westmont Bank has taken over the management of the
affairs/properties of the BANK, [respondent] on October 10, 1996, led an
Amended Complaint reiterating substantially his allegations in the original
complaint, except that the name of the previous defendant ASSOCIATED BANK is
now WESTMONT BANK.
"Trial ensured and thereafter, the court rendered its Decision dated
December 3, 1996 in favor of the [respondent] and against the [petitioner],
ordering the latter to pay the [respondent] the sum of P100,000.00 by way of
moral damages, P75,000.00 as exemplary damages, P25,000.00 as attorney's
fees, plus the costs of this suit. In making said ruling, it was shown that
[respondent] was not o cially informed about the debiting of the P101,000.00
[from] his existing balance and that the BANK merely allowed the [respondent] to
use the fund prior to clearing merely for accommodation because the BANK
considered him as one of its valued clients. The trial court ruled that the bank
manager was negligent in handling the particular checking account of the
[respondent] stating that such lapses caused all the inconveniences to the
[respondent]. The trial court also took into consideration that [respondent's]
mother was originally maintaining with the . . . BANK [a] current account as well
as [a] time deposit, but [o]n one occasion, although his mother made a deposit,
the same was not credited in her favor but in the name of another." 4
Petitioner appealed to the CA on the issues of whether it was within its rights, as
collecting bank, to debit the account of its client for a dishonored check; and whether it
had informed respondent about the dishonor prior to debiting his account.
Ruling of the Court of Appeals
A rming the trial court, the CA ruled that the bank should not have authorized the
withdrawal of the value of the deposited check prior to its clearing. Having done so,
contrary to its obligation to treat respondent's account with meticulous care, the bank
violated its own policy. It thereby took upon itself the obligation to o cially inform
respondent of the status of his account before unilaterally debiting the amount of
P101,000. Without such notice, it is estopped from blaming him for failing to fund his
account.
The CA opined that, had the P101,000 not been debited, respondent would have had
su cient funds for the postdated checks he had issued. Thus, the supposed
accommodation accorded by petitioner to him is the proximate cause of his business
woes and shame, for which it is liable for damages.
Because of the bank's negligence, the CA awarded respondent moral damages of
P100,000. It also granted him exemplary damages of P75,000 and attorney's fees of
P25,000.
Hence this Petition. 5
Issue
In its Memorandum, petitioner raises the sole issue of "whether or not the petitioner,
which is acting as a collecting bank, has the right to debit the account of its client for a
check deposit which was dishonored by the drawee bank." 6
The Court's Ruling
The Petition has no merit. ESaITA
Sole Issue:
Debit of Depositor's Account
Petitioner-bank contends that its rights and obligations under the present set of
facts were misappreciated by the CA. It insists that its right to debit the amount of the
dishonored check from the account of respondent is clear and unmistakable. Even
assuming that it did not give him notice that the check had been dishonored, such right
remains immediately enforceable.
In particular, petitioner argues that the check deposit slip accomplished by
respondent on September 17, 1990, expressly stipulated that the bank was obligating
itself merely as the depositor's collecting agent and — until such time as actual payment
would be made to it — it was reserving the right to charge against the depositor's account
any amount previously credited. Respondent was allowed to withdraw the amount of the
check prior to clearing, merely as an act of accommodation, it added.
At the outset, we stress that the trial court's factual ndings that were a rmed by
the CA are not subject to review by this Court. 7 As petitioner itself takes no issue with
those findings, we need only to determine the legal consequence, based on the established
facts.
Right of Setoff
A bank generally has a right of setoff over the deposits therein for the payment of
any withdrawals on the part of a depositor. 8 The right of a collecting bank to debit a
client's account for the value of a dishonored check that has previously been credited has
fairly been established by jurisprudence. To begin with, Article 1980 of the Civil Code
provides that "[f]ixed, savings, and current deposits of money in banks and similar
institutions shall be governed by the provisions concerning simple loan."
Hence, the relationship between banks and depositors has been held to be that of
creditor and debtor. 9 Thus, legal compensation under Article 1278 1 0 of the Civil Code
may take place "when all the requisites mentioned in Article 1279 are present," 1 1 as
follows:
"(1) That each one of the obligors be bound principally, and that he be
at the same time a principal creditor of the other;
(2) That both debts consist in a sum of money, or if the things due are
consumable, they be of the same kind, and also of the same quality if the latter
has been stated;
(3) That the two debts be due;

(4) That they be liquidated and demandable;
(5) That over neither of them there be any retention or controversy,
commenced by third persons and communicated in due time to the debtor." 1 2
Nonetheless, the real issue here is not so much the right of petitioner to debit
respondent's account but, rather, the manner in which it exercised such right. The Court
has held that even while the right of setoff is conceded, separate is the question of
whether that remedy has properly been exercised. 1 3
The liability of petitioner in this case ultimately revolves around the issue of whether
it properly exercised its right of setoff. The determination thereof hinges, in turn, on the
bank's role and obligations, rst , as respondent's depositary bank; and second, as
collecting agent for the check in question.
Obligation as
Depositary Bank
In BPI v. Casa Montessori , 1 4 the Court has emphasized that the banking business is
impressed with public interest. "Consequently, the highest degree of diligence is expected,
and high standards of integrity and performance are even required of it. By the nature of its
functions, a bank is under obligation to treat the accounts of its depositors with
meticulous care." 1 5
Also a rming this long standing doctrine, Philippine Bank of Commerce v. Court of
Appeals 1 6 has held that "the degree of diligence required of banks is more than that of a
good father of a family where the duciary nature of their relationship with their depositors
is concerned." 1 7 Indeed, the banking business is vested with the trust and con dence of
the public; hence the "appropriate standard of diligence must be very high, if not the
highest, degree of diligence." 1 8 The standard applies, regardless of whether the account
consists of only a few hundred pesos or of millions. 1 9
The duciary nature of banking, previously imposed by case law, 2 0 is now enshrined
i n Republic Act No. 8791 or the General Banking Law of 2000. Section 2 of the law
speci cally says that the State recognizes the " duciary nature of banking that requires
high standards of integrity and performance."
Did petitioner treat respondent's account with the highest degree of care? From all
indications, it did not.
It is undisputed — nay, even admitted — that purportedly as an act of
accommodation to a valued client, petitioner allowed the withdrawal of the face value of
the deposited check prior to its clearing. That act certainly disregarded the clearance
requirement of the banking system. Such a practice is unusual, because a check is not
legal tender or money; 2 1 and its value can properly be transferred to a depositor's account
only after the check has been cleared by the drawee bank. 2 2
Under ordinary banking practice, after receiving a check deposit, a bank either
immediately credit the amount to a depositor's account; or infuse value to that account
only after the drawee bank shall have paid such amount. 2 3 Before the check shall have
been cleared for deposit, the collecting bank can only "assume" at its own risk — as herein
petitioner did — that the check would be cleared and paid out.
Reasonable business practice and prudence, moreover, dictated that petitioner
should not have authorized the withdrawal by respondent of P240,000 on October 1, 1990,
as this amount was over and above his outstanding cleared balance of P196,793.45. 2 4
Hence, the lower courts correctly appreciated the evidence in his favor.
Obligation as
Collecting Agent
Indeed, the bank deposit slip expressed this reservation:
"In receiving items on deposit, this Bank obligates itself only as the
Depositor's Collecting agent, assuming no responsibility beyond carefulness in
selecting correspondents, and until such time as actual payments shall have
come to its possession, this Bank reserves the right to charge back to the
Depositor's account any amounts previously credited whether or not the
deposited item is returned. . . ." 2 5
However, this reservation is not enough to insulate the bank from any liability. In the
past, we have expressed doubt about the binding force of such conditions unilaterally
imposed by a bank without the consent of the depositor. 2 6 It is indeed arguable that "in
signing the deposit slip, the depositor does so only to identify himself and not to agree to
the conditions set forth at the back of the deposit slip." 2 7
Further, by the express terms of the stipulation, petitioner took upon itself certain
obligations as respondent's agent, consonant with the well-settled rule that the
relationship between the payee or holder of a commercial paper and the collecting bank is
that of principal and agent. 2 8 Under Article 1909 2 9 of the Civil Code, such bank could be
held liable not only for fraud, but also for negligence.
As a general rule, a bank is liable for the wrongful or tortuous acts and declarations
of its o cers or agents within the course and scope of their employment. 3 0 Due to the
very nature of their business, banks are expected to exercise the highest degree of
diligence in the selection and supervision of their employees. 3 1 Jurisprudence has
established that the lack of diligence of a servant is imputed to the negligence of the
employer, when the negligent or wrongful act of the former proximately results in an injury
to a third person; 3 2 in this case, the depositor.
The manager of the bank's Cabanatuan branch, Consorcia Santiago, categorically
admitted that she and the employees under her control had breached bank policies. They
admittedly breached those policies when, without clearance from the drawee bank in
Baguio, they allowed respondent to withdraw on October 1, 1990, the amount of the check
deposited. Santiago testi ed that respondent "was not o cially informed about the
debiting of the P101,000 from his existing balance of P170,000 on October 2, 1990 . . . " 3 3
Being the branch manager, Santiago clearly acted within the scope of her authority in
authorizing the withdrawal and the subsequent debiting without notice. Accordingly, what
remains to be determined is whether her actions proximately caused respondent's injury.
Proximate cause is that which — in a natural and continuous sequence, unbroken by any
e cient intervening cause — produces the injury, and without which the result would not
have occurred. 3 4
Let us go back to the facts as they unfolded. It is undeniable that the bank's
premature authorization of the withdrawal by respondent on October 1, 1990, triggered —
in rapid succession and in a natural sequence — the debiting of his account, the fall of his
account balance to insu cient levels, and the subsequent dishonor of his own checks for
lack of funds. The CA correctly noted thus:
". . . [T]he depositor . . . withdrew his money upon the advice by [petitioner]
that his money was already cleared. Without such advice, [respondent] would not
have withdrawn the sum of P240,000.00. Therefore, it cannot be denied that it
was [petitioner's] fault which allowed [respondent] to withdraw a huge sum which
he believed was already his. TaCEHA
"To emphasize, it is beyond cavil that [respondent] had su cient funds for
the check. Had the P101,000.00 not [been] debited, the subject checks would not
have been dishonored. Hence, we can say that [respondent's] injury arose from
the dishonor of his well-funded checks. . . ." 3 5
Aggravating matters, petitioner failed to show that it had immediately and duly
informed respondent of the debiting of his account. Nonetheless, it argues that the giving
of notice was discernible from his act of depositing P50,000 on October 2, 1990, to
augment his account and allow the debiting. This argument deserves short shrift.
First, notice was proper and ought to be expected. By the bank manager's account,
respondent was considered a "valued client" whose checks had always been su ciently
funded from 1987 to 1990, 3 6 until the October imbroglio. Thus, he deserved nothing less
than an official notice of the precarious condition of his account.
Second, under the provisions of the Negotiable Instruments Law regarding the
liability of a general indorser 3 7 and the procedure for a notice of dishonor, 3 8 it was
incumbent on the bank to give proper notice to respondent. In Gullas v. National Bank , 3 9
the Court emphasized:
". . . [A] general indorser of a negotiable instrument engages that if the
instrument — the check in this case — is dishonored and the necessary
proceedings for its dishonor are duly taken, he will pay the amount thereof to the
holder (Sec. 66) It has been held by a long line of authorities that notice of
dishonor is necessary to charge an indorser and that the right of action against
him does not accrue until the notice is given.
". . . The fact we believe is undeniable that prior to the mailing of notice of
dishonor, and without waiting for any action by Gullas, the bank made use of the
money standing in his account to make good for the treasury warrant. At this
point recall that Gullas was merely an indorser and had issued checks in good
faith. As to a depositor who has funds su cient to meet payment of a check
drawn by him in favor of a third party, it has been held that he has a right of
action against the bank for its refusal to pay such a check in the absence of
notice to him that the bank has applied the funds so deposited in extinguishment
of past due claims held against him. (Callahan vs. Bank of Anderson [1904], 2
Ann. Cas., 203.) However this may be, as to an indorser the situation is different,
and notice should actually have been given him in order that he might protect his
interests." 4 0
Third, regarding the deposit of P50,000 made by respondent on October 2, 1990, we

fully subscribe to the CA's observations that it was not unusual for a well-reputed
businessman like him, who "ordinarily takes note of the amount of money he takes and
releases," to immediately deposit money in his current account to answer for the
postdated checks he had issued. 4 1
Damages
Inasmuch as petitioner does not contest the basis for the award of damages and
attorney's fees, we will no longer address these matters.
WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs
against petitioner.
SO ORDERED.
Sandoval-Gutierrez, Carpio Morales and Garcia, JJ ., concur.
Corona, J ., is on leave.
Footnotes
1. Rollo, pp. 18–42.
2. Penned by Justice Mercedes Gozo-Dadole and concurred in by Justices B. A. Adefuin de
la Cruz (then Chairman, Ninth Division) and Mariano C. del Castillo.
3. CA Decision, p. 9; rollo, p. 92.
4. Id., pp. 2–4 & 85–87. Citations omitted.

5. The Petition was deemed submitted for decision on December 1, 2003, upon the court's
receipt of respondent's Memorandum signed by Atty. Cesar R. Villar. Petitioner's
Memorandum, signed by Atty. Edgardo G. Villarin, was received by the Court on
November 5, 2003.
6. Petitioner's Memorandum, p. 8; rollo, p. 121.
7. Aclon v. CA, 436 Phil. 219, 230, August 20, 2002; Reyes v. CA & Far East Bank and Trust
Company, 415 Phil. 258, 267, August 15, 2001; W-Red Construction and Development
Corporation v. CA, 392 Phil. 888, 894, August 17, 2000.
8. Gullas v. National Bank, 62 Phil. 519, 521, November 13, 1935.
9. Consolidated Bank & Trust Corporation v. CA, 410 SCRA 562, 574, September 11, 2003;
Guingona Jr. v. City Fiscal of Manila, 128 SCRA 577, 584, April 4, 1984; Serrano v.
Central Bank of the Phils., 96 SCRA 96, 102–103, February 14, 1980.
10. Article 1278 provides:
"Art. 1278. Compensation shall take place when two persons, in their own right,
are creditors and debtors of each other." (See also Bank of the Philippine Islands v. CA,
325 Phil. 930, 938–939, March 29, 1996.)
11. Article 1290 of the Civil Code.
13. Gullas v. National Bank; supra, p. 522.
14. GR No. 149454, May 28, 2004.
15. Id., per Panganiban, J.

16. 336 Phil. 667, March 14, 1997 (cited in Reyes v. CA & Far East Bank and Trust
Company; supra, p. 269.)
17. Id., p. 681, per Hermosisima Jr., J. See also Consolidated Bank & Trust Corporation v.
CA; supra, pp. 574–575.
18. Philippine Commercial International Bank v. CA, 350 SCRA 446, 472, January 29, 2001,
per Quisumbing, J (citing Simex International (Manila), Inc. v. CA, 183 SCRA 360, 367,
March 19, 1990).
19. Prudential Bank v. CA, 384 Phil. 817, 825, March 16, 2000; Philippine National Bank v.
CA, 373 Phil. 942, 948, September 28, 1999; Simex International v. CA, supra; BPI v.
Intermediate Appellate Court, 206 SCRA 408, 412–413, February 21, 1992.
20. Simex International v. CA, supra; BPI v. IAC, supra; Metropolitan Bank & Trust Co. v. CA,
237 SCRA 761, 767, October 26, 1994.
21. Philippine Airlines, Inc. v. CA, 181 SCRA 557, 568, January 30, 1990.
22. Roman Catholic Bishop of Malolos, Inc. v. IAC, 191 SCRA 411, 422, November 16, 1990
(cited in Bank of the Philippine Islands v. CA, 383 Phil. 538, 547, February 29, 2000).
23. Bank of the Philippine Islands v. CA; supra, p. 554 (citing Banco Atlantico v. Auditor
General, 81 SCRA 335, 340-341, January 31, 1978).
24. This amount was computed based on the bank ledger which was submitted as Annex
"A" of Respondent's Complaint; rollo, p. 48.
25. Petitioner's (then Defendant-Appellant's) Brief to the CA, pp. 5–6; rollo, pp. 62–63.
26. Metropolitan Bank & Trust Company v. CA, 194 SCRA 169, 175, February 18, 1991.
27. Ibid.
28. Philippine Commercial International Bank v. CA; supra, p. 466.
29. Art. 1909 of the Civil Code provides:
"Art. 1909. The agent is responsible not only for fraud, but also for negligence,
which shall be judged with more or less rigor by the courts, according to whether the
agency was or was not for compensation."
30. Philippine Commercial International Bank v. CA; supra at p. 470; Producers Bank of the
Philippines (Now First International Bank) v. CA, 397 SCRA 651, 663, February 19, 2003.
Article 2180 of the Civil Code, which embodies this principle, provides:
"Art. 2180. The obligation imposed by Article 2176 is demandable not only for
one's own acts or omissions, but also for those of persons for whom one is demandable.
xxx xxx xxx
"Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are not
engaged in any business or industry."
31. Philippine Commercial International Bank v. CA; supra, p. 472.
32. Id., p. 464; BPI v. Casa Montessori Internationale; supra.
33. RTC Decision, p. 4; rollo, p. 77.
34. BPI v. Casa Montessori Internationale; supra, p. 26.

35. CA Decision, pp. 7–8; rollo, pp. 90–91.
36. RTC Decision, p. 3; id., p. 76.
37. §66 of the Negotiable Instruments Law provides:
"Sec. 66. Liability of general indorser. — Every indorser who indorses without
qualification, warrants to all subsequent holders in due course:
xxx xxx xxx
"And, in addition, he engages that, on due presentment, it shall be accepted or paid, or

both, as the case may be, according to its tenor, and that if it be dishonored and the
necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the
holder, or to any subsequent indorser who may be compelled to pay it."
38. The procedure as to the manner and the time of giving notice is outlined under §§89–
118 of the said law. §89, in particular, provides as follows:
"Sec. 89. To whom notice of dishonor must be given. — Except as herein
otherwise provided, when a negotiable instrument has been dishonored by non-
acceptance or non-payment, notice of dishonor must be given to the drawer and to each
indorser, and any drawer or indorser to whom such notice is not given is discharged."
39. Supra.
40. Id., pp. 521–522, per Malcolm, J.
41. CA Decision, p. 7; rollo, p. 90.

FIRST DIVISION
[G.R. No. L-1719. January 23, 1907.]
M. H., RAKES , plaintiff-appellee, vs . THE ATLANTIC, GULF AND

PACIFIC COMPANY , defendant-appellant.
A. D. Gibbs, for appellant.

F. G. Waite and Thimas Kepner, for appellee.
SYLLABUS
1. CIVIL LIABILITY FOR DAMAGES. — In order to enforce the liability of an

employer for injuries to his employee, it is not necessary that a criminal action be first
prosecuted against the employer or his representative primarily chargeable with the
accident. No criminal proceeding having been taken, the civil action may proceed to
judgment.
2. LIABILITY OF EMPLOYER TO WORKMEN. — The responsibility of an
employer to his employee of a fellow-servant of the employee injured, is not adopted in
Philippine jurisprudence.
3. FELLOW-SERVANT RULE. — The doctrine known as the "Fellow-servant
rule," exonerating the employer where the injury was incurred through the negligence of
a fellow-servant of the employee injured, is not adopted in Philippine jurisprudence.
4. CONSTRIBUTORY NEGLIGENCE. — The negligence of the injured person
contributing to his injury but not being one of the determining causes of the principal
accident, does not operate as a bar to recovery, but only in reduction of his damages.
Each party is chargeable with damages in proportion to his fault.
DECISION
TRACEY , J : p
This is an action for damages. The plaintiff, one of a gang of eight negro laborers
in the employment of the defendant, was at work transporting iron rails from a barge in
the harbor to the company's yard near the malecon in Manila. Plaintiff claims that but
one hand car was used in this work. The defendant has proved that there were two
immediately following one another, upon which were piled lengthwise seven rails, each
weighing 560 pounds, so that the ends of the rails lay upon two crosspieces or sills
secured to the cars, but without side pieces or guards to prevent them from slipping
off. According to the testimony of the plaintiff, the men were either in the rear of the car
or at its sides. According to that defendant, some of them were also in front, hauling by
a rope. At a certain spot at or near the water's edge the track sagged, the tie broke, the
car either canted or upset, the rails slid off and caught the plaintiff, breaking his leg,
which was afterwards amputated at about the knee.
This rst point for the plaintiff to establish was that the accident happened
through the negligence of the defendant. The detailed description by the defendant's
witnesses of the construction and quality of the track proves that if was up to the
general stranded of tramways of that character, the foundation consisting on land of
blocks or crosspieces of wood, by 8 inches thick and from 8 to 10 feet long laid, on the
surface of the ground, upon which at a right angle rested stringers of the same
thickness, but from 24 to 30 feet in length. On the across the stringers the parallel with
the blocks were the ties to which the tracks were fastened. After the road reached the
water's edge, the blocks or crosspieces were replaced with pilling, capped by timbers
extending from one side to the other. The tracks were each about 2 feet wide and the
two inside rails of the parallel tracks about 18 inches apart. It was admitted that there
were no side pieces or guards on the car; that where no ends of the rails of the track
met each other and also where the stringers joined, there were no sh plates. the
defendant has not effectually overcome the plaintiff's proof that the joints between the
rails were immediately above the joints between the underlying stringers.
The cause of the sagging of the tracks and the breaking of the tie, which was the
immediate occasion of the accident, is not clear in the evidence, but is found by the trial
court and is admitted in the briefs and in the argument to have been the dislodging of
the crosspiece or piling under the stringer by the water of the bay raised by a recent
typhoon. The superintendent of the company attributed it to the giving way of the block
laid in the sand. No effort was made to repair the injury at the time of the occurrence.
According to plaintiffs witnesses, a depression of the track, varying from one half inch
to one inch and a half, was thereafter apparent to the eye, and a fellow workman of the
plaintiff swears that the day before the accident he called the attention of McKenna, the
foreman, to it and asked by simply straightening out the crosspiece, resetting the block
under the stringer and renewing the tie, but otherwise leaving the very same timbers as
before. It has not proven that the company inspected the track after the typhoon or had
any proper system of inspection.
In order to charge the defendant with negligence, it was necessary to show a
breach of duty on its part in failing either to properly secure the load on iron to vehicles
transporting it, or to skillfully build the tramway or to maintain it in proper condition, or
to vigilantly inspect and repair the roadway as soon as the depression in it became
visible. It is upon the failure of the defendant to repair the weakened track, after notice
of its condition, that the judge below based his judgment.
This case presents many important matters for our decision, and rst among
them is the standard of duty which we shall establish in our jurisprudence on the part of
employees toward employees.
The lack or the harshness of legal rules on this subject has led many countries to
enact designed to put these relations on a fair basis in the form of compensation or
liability laws or the institution of insurance. In the absence of special legislation we nd
no difficulty in so applying the general principles of our law as to work out a just result.
Article 1092 of the Civil Code provides:
"Civil obligations, arising from crimes or misdemeanors, shall be governed by the
provisions of the Penal Code."
And article 568 of the latter code provides:
"He who shall execute through reckless negligence an act that if done with malice
would constitute a grave crime, shall be punished."
And article 590 provides that the following shall be punished:
"4. Those who by simple imprudence or negligence, without committing any
infraction of regulations, shall cause an injury which, had malice intervened, would have
constituted a crime or misdemeanor."
And nally by articles 19 and 20, the liability of owners and employers for the
faults of their servants and representatives is declared to be civil and subsidiary in its
character.
It is contented by the defendant, as its rst defense to the action, that the
necessary conclusion from these collated laws is that the remedy for injuries through
negligence lies only in a criminal action in which the of cial criminally responsible must
be made primarily liable and his employer held only subsidiarily to him. According to
this theory the plaintiff should have procured the arrest of the representative of the
company accountable for not repairing the tract, and on his prosecution a suitable ne
should have been imposed, payable primarily by him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject.
Article 1093 of the Civil Code makes obligations arising from faults or negligence not
punished by the law, subject to the provisions of Chapter 11 of Title XVI. Section 1902
of that chapter reads:
"A person who by an act or omission causes damage to another when there is
fault or negligence shall be obliged to repair the damage so done.
"SEC. 1903. The obligation imposed by the preceding article is demandable,
not only for personal acts and omissions, but also for those of the persons for whom
they should be responsible.
"The father, and on his death or incapacity, the mother, is liable for the damages
caused by the minors who live with them.
xxx xxx xxx
"Owners or directors of an establishment or enterprise are equally liable for the
damages caused by their employees in the service of the branches in which the latter
may be employed or in the performance of their duties.
xxx xxx xxx
"The liability referred to in this article shall cease when the persons mentioned
therein prove that they employed all the diligence of a good father of a family to avoid
the damages.'
As an answer to the argument urged in this particular action it may be suf cient
to point out that nowhere in our general statutes is the employer penalized for failure to
provide or maintain safe appliances for his workmen. His obligation therefore is one
"not punished by the law " and falls under civil rather than criminal jurisprudence. But the
answer may be a broader one. We should be reluctant, under any conditions, to adopt a
forced construction of these scienti c codes, such as is proposed by the defendant,
that would rob some of these articles of effect, would shut out litigants their will from
the civil courts, would make the assertion of their rights dependent upon the selection
for prosecution of the proper criminal offender, and render recovery doubtful by reason
of the strict rules of proof prevailing in criminal actions. Even if these articles had
always stood alone, such a construction would be unnecessary, but clear light is thrown
upon their meaning by the provisions of the Law of Criminal Procedure of Spain (Ley de
Enjuiciamiento Criminal), which, though n ever in actual force in these Islands, was
formerly given a suppletory or explanatory effect. Under article 111 of this law, both
classes of action, civil and criminal, might be prosecuted jointly or separately, but while
the penal action was pending the civil was suspended. According to article 112, the
penal action once started, the civil remedy should be sought therewith, unless it had
been waived by the party injured or been expressly reserved by him for civil
proceedings for the future. If the civil action alone was prosecuted, arising out of a
crime that could be enforced by only on private complaint, the penal action thereunder
should be extinguished. These provisions are in harmony with those of articles 23 and
133 of our Penal Code on the same subject.
An examination of this topic might be carried much further, but the citations of
these articles suf ces to show that the civil liability was not intended to be merged in
the criminal nor even to be suspended thereby, except as expressly provided by law.
Where an individual is civilly liable for a negligent act or omission, it is not required that
the inured party should seek out a third person criminally liable whose prosecution
must be a condition precedent to the enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an employer may be
regarded as subsidiary in respect of criminal actions against his employees only while
they are process of prosecution, or in so far as they determinate the existence of the
criminal act from which liability arises, and his obligation under the civil law and its
enforcement in the civil courts is not barred thereby unless by election of the injured
person. Inasmuch as no criminal in question, the provisions of the Penal Code can not
affect this action. This construction renders it unnecessary to nally determine here
whether this subsidiary civil liability in penal actions survived the laws that fully
regulated it or has been abrogated by the American civil and criminal procedure now in
force in the Philippines.
The dif culty in construing the articles of the code above cited in this case
appears from the briefs before us to have arisen from the interpretation of the words of
article 1093, "fault or negligence not punished by law," as applied to the comprehensive
de nition of offenses in articles 568 and 590 of the Penal Code. It has been shown that
the liability of an employer arising out of his relation to his employee who is the
offender is not to be regarded as derived from negligence punished by the law, within
the meaning of articles 1092 and 1093. More than this, however, it can not be said to
fall within the class of acts unpunished by the law, the consequences of which are
regulated by articles 1902 and 1903 of the Civil Code. The acts to which these articles
are applicable are understood to be those and growing out of preexisting duties of the
parties to one another. But were relations already formed give rise to duties, whether
springing from contract or quasi contract, then breaches of those duties are subject to
articles 1101, 1103, and 1104, of the same code. A typical application of the distinction
may be found in the consequences of a railway accident due to defective machinery
supplied by the employer. His liability to his employee would arise out of the contract of
employment, that to the passengers out of the contract for passage. while that to that
injured bystander would originate in the negligent act itself. This distinction is thus
clearly set forth by Manresa in his commentary on article 1093.
"We are with reference to such obligations, that culpa, or negligence, may be
understood in two difference senses; either as culpa, substantive and independent,
which on account of its origin arises in an obligation between two persons not formerly
bound by any other obligation; or as an incident in the performance of an obligation; or
as already existed, which can not be presumed to exist without the other, and which
increases the liability arising from the already exiting obligation.
"Of these two species of culpa the rst one mentioned, existing by itself, may be
also considered as a real source of an independent obligation, and, as chapter 2, title 16
of this book of the code is devoted to it, it is logical to presume that the reference
contained in article 1093 is limited thereto and that it does not extend to those
provisions relating to the other species of culpa (negligence), the nature of which we
will discuss later. (Vol. 8, p. 29.)
And in his commentary on articles 1102 and 1104 he says that these two
species of negligence may be somewhat inexactly described as contractual and extra-
contractual, the letter being the culpa aquiliana of the Roman law and not entailing so
strict an obligation as the former. This terminology is unreservedly accepted by
Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II, No. 12), and the
principle stated is supported be decisions of the supreme court of Spain, among them
those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75
Jurisprudencia Civil, No. 182). The contract is one for hire and not one of mandate.
(March 10, 1897, 81 Jurisprudencia Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law
of January 30, 1900, throws uncertain light on the relation between master and
workman. Moved by the quick industrial development of their people, the courts of
France early applied to the subject the principles common to the law of both countries,
which are lucidly discussed by the leading French commentators.
The original French theory, resting the responsibility of owners of industrial
enterprises upon articles 1382, 1383, and 1384 of the Code Napoleon, corresponding
in scope to articles 1902 and 1903 of the Spanish Code, soon yielded to the principle
that the true basis is the contractual obligation of the employer and employee. (See 18
Dalloz, 196, Title Travail, 331.)
Later the hardships resulting from special exemptions inserted in contracts for
employment led to the discovery of a third basis for liability in an article of he French
Code making the possessor of any object answerable for damage done by it while in
his charge. Our law having no counterpart of this article, applicable to every kind of
object, we need consider neither the theory growing out of it nor that of "professional
risk" more recently imposed by express legislation, but rather adopting the
interpretation of our Civil Code above given, nd a rule for this case in the contractual
obligation. This contractual obligation, implied from the relation and perhaps so
inherent in its nature to be invariable by the parties, binds the employer to provide safe
appliances for the use of the employee, thus closely corresponding to English and
American Law. On these principles it was the duty of the defendant to build and to
maintain its track in reasonably sound condition, so as to protect its workingmen from
unnecessary danger. It is plain that in one respect or the other it failed in its duty,
otherwise the accident could not have occurred; consequently the negligence of the
defendant is established.
Another contention of the defense is that the injury resulted to the plaintiff as a
risk incident to his employment and, as such, one assumed by him. It is evident that this
can not be the case if the occurrence was due to the failure to repair the track or to duly
inspect, it for the employee is not presumed to have stipulated that the employer might
neglect his legal duty. Nor may it be excused upon the ground that the negligence
leading to the accident was that of a fellow-servant of the injured man. It is not
apparent to us that the intervention of a third person can relieve the defendant from the
performance of its duty nor impose upon the plaintiff the consequences of an act or
omission not his own. Sua cuique culpa nocet. This doctrine, known as "the fellow-
servant, rule," we are not disposed to introduce into our jurisprudence. Adopted in
England by Lord Abinger in the case of Prescott vs. Fowler (3 Meeson & Welsby, 1) in
1837, it has since been effectually abrogated by "the Employers' Liability Acts" and the
"Compensation Law." The American States which applied it appear to be gradually
getting rid of it; for instance, the New York State legislature of 1906 did away with it in
respect to railroad companies, and had in hand a scheme for its total abolition. It has
never found place in the civil law of continental Europe. (Dalloz, vol. 39, 1858, Title
Responsibilite, 630, and vol. 15, 1895, same title, 804. Also more recent instances in
Fuzier-Herman, Title Responsibilite Civile, 710.)
The French Cour de Cassation clearly laid down the contrary principle in its
judgment of June 28, 1841, in the case of Reygasse, and has since adhered to it.
The most controverted question in the case is that of the negligence of the
plaintiff, contributing to the accident, to what extent it existed in fact and what legal
effect is to be given it. In two particulars is he charged with carelessness:
First. That having noticed the depression in the track he continued his work;
and
Second. That he walked on the ends of the ties at the side of the car instead
of along the boards, either before or behind it.
As to the rst point, the depression in the track night indicate either a serious or
a rival dif culty. There is nothing in the evidence to show that the plaintiff did or could
see the displaced timber underneath the sleeper. The claim that he must have done so
is a conclusion drawn from what is assumed to have been a probable condition of
things not before us, rather than a fair inference from the testimony. While the method
of construction may have been known to the men who had helped build the road, it was
otherwise with the plaintiff who had worked at this job less than two days. A man may
easily walk along a railway without perceiving a displacement of the underlying timbers.
The foreman testi ed that he knew the state of the track on the day of the accident and
that it was then in good condition, and one Danridge, a witness for the defendant,
working on the same job, swore that he never noticed the depression in the track and
never saw any bad place in it. The sagging of the track this plaintiff did perceive, but
that was reported in his hearing to the foreman who neither promised nor refused to
repair it. His lack of caution in continuing at his work after noticing the slight
depression of the rail was not of so gross a nature as to constitute negligence, barring
his recovery under the severe American rule. On this point we accept the conclusion of
the trial judge who found as facts that "the plaintiff did not know the cause of the one
rail being lower than then other" and "it does not appear in this case that the plaintiff
knew before the accident occurred that the stringers and rails joined in the same place."
Were we not disposed to agree with these ndings they would, nevertheless, be
binding upon us, because not "plainly and manifestly against the weight of evidence," as
those words of section 497, paragraph 3 of the Code of Civil Procedure were
interpreted by the Supreme Court of the United States in the De la Rama case (201 U. S.,
303).
In respect of the second charge of negligence against the plaintiff, the judgment
below is not so speci c. While the judge remarks that the evidence does not justify the
nding that the car was pulled by means of a rope attached to the front end or to the
rails upon it, and further that the circumstances in evidence make it clear that the
persons necessary to operate the car could not walk upon the plank between the rails
and that, therefore, it was necessary for the employees moving it to get hold upon it as
best they could, there is no speci c nding upon the instruction given by the defendant
to its employees to walk only upon the planks, nor upon the necessity of the plaintiff
putting himself upon the ties at the side in order to get hold upon the car. Therefore the
ndings of the judge below leave the conduct of the plaintiff in walking along the side
of the loaded car, upon the open ties, over the depressed track, free to our inquiry.
While the plaintiff and his witnesses swear that not only were they not forbidden
to proceed in this way, but were expressly directed by the foreman to do so, both the
of cers of the company and three of the workmen testify that there was a general
prohibition frequently made known to all the gang against walking by the side of the
car, and the foreman swears that he repeated the prohibition before the starting of this
particular load. On this contradiction of proof we think that the preponderance is in
favor of the defendant's contention to the extent of the general order being made
known to the workmen. If so, the disobedience of the plaintiff in placing himself in
danger contributed in some degree to the injury as a proximate, although not as its
primary cause. This conclusion presents sharply the question, What effect is to be given
such an act of contributory negligence? Does it defeat a recovery, according to the
American rule, or is it to be taken only in reduction of damages?
While a few of the American States have adopted to a greater or less extent the
doctrine of comparative negligence, allowing a recovery by a plaintiff whose own act
contributed to his injury, provided his negligence was slight as compared with that of
the defendant, and some others have accepted the theory of proportional damages,
reducing the award to a plaintiff in proportion to his responsibility for the accident, yet
the overwhelming weight of adjudication establishes the principle in American
jurisprudence that any negligence, however slight, on the part of the person injured
which is one of the causes proximately contributing to his injury, bars his recovery.
(English and American Encyclopedia of law, Titles "Comparative Negligence" and
Contributory Negligence.")
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the
Supreme Court of the United States thus authoritatively states the present rule of law:
"Although the defendant's' negligence may have been the primary cause of the
injury complained of, yet an action for such injury can not be maintained if the proximate
and immediate cause of the injury can be traced to the want of ordinary care and
caution in the person injured; subject to this quali cation, which has grown up in recent
years (having been rst enunciated in Davies vs. Mann, 10 M. & W., 546) that the
contributory negligence of the party injured will not defeat the action if it be shown that
the defendant might, by the exercise of reasonable care and prudence, have avoided the
consequences of the injured party's negligence."
There are may cases in the supreme court of Spain in which the defendant was
exonerated, but when analyzed they prove to have been decided either upon the point
that he was not negligent or that the negligence of the plaintiff was the immediate
cause of the casualty or that the accident was due to casus fortuitus. Of the rst class
in the decision of January 26, 1887 (38 Jurisprudencia Criminal, No. 70), in which a
railway employee, standing on a car, was thrown therefrom and killed by the shock
following the backing up of the engine. It was held that the management of the train
and engine being in conformity with proper rules of the company, showed no fault on its
part.
Of the second class are the decision of the 15th of January, the 19th of February,
and the 7th of March, 1902, stated in Alcubilla's Index of that year; and of the third class
the decision of the 4th of June, 1888 (64 Jurisprudencia Civil, No. 1), in which the
breaking down of plaintiff's dam by the logs of the defendant impelled against it by the
Tajo River, was held due to a freshet as a fortuitous cause.
The decision of the 7th of March, 1902, on which stress has been laid, rested on
two bases, one, that the defendant was not negligent, because expressly relieved by
royal order from the common obligation imposed by the police law of maintaining a
guard at the road crossing; the other, because the act of the deceased in driving over
level ground with unobstructed view in front of a train running at speed, with the engine
whistle blowing was the determining cause of the accident. It is plain that the train was
doing nothing but what it had a right to do and that the only fault lay with the injured
man. His negligence was not contributory, it was sole, and was of such an ef cient
nature that without it no catastrophe could have happened.
On the other hand, there are many cases reported in which it seems plain that the
plaintiff sustaining damages was not free from contributory negligence; for instance,
the decision of the 14th of December, 1894 (76 Jurisprudencia Civil, No. 134), in which
the owner of a building was held liable for not furnishing protection to workmen
engaged in hanging out ags, when the latter must have perceived beforehand the
danger attending the work.
None of those cases de ne the effect to be given the negligence of a plaintiff
which contributed to his injury as one of its causes, though not the principal one, and we
are left to seek the theory of the civil law in the practice of other countries.
In France in the case of Marquant, August 20, 1879, the cour de cassation held
that the carelessness of the victim did not civilly relieve the person without whose fault
the accident could not have happened, but that the contributory negligence of the
injured man had the effect only of reducing the damages. The same principle was
applied in the case of Recullet, November 10, 1888. and that of Laugier of the 11th of
November, 1896. (Fuzier-Herman, Title Responsibilite Cirile, 411, 412.) Of like tenor are
citations in Dalloz (vol. 18, 1806, Title Trial, 363, 364, and vol. 15, 1895, Title
Responsibilite, 193, 198).
In the Canadian Province of Quebee, which has retained for the most part the
French Civil Law, now embodied in a code following the Code Napoleon, a practice in
accord with that of France is laid down in many cases collected in the annotations to
article 1053 of the code edited by Beauchamps, 1904. One of these is Luttrell vs.
Trottier, reported in La Revue de Jurisprudence, volume 6, page 90, in which the court of
Kings bench, otherwise known as the court of appeals, the highest authority in the
Dominion of Canada on points of French law, held that contributory negligence did not
exonerate the defendants whose fault had been the immediate cause of the accident,
but entitled him to a reduction of damages. Other similar cases in the provincial courts
have been overruled by appellate tribunals made up of common law judges drawn from
other provinces, who have preferred to impose uniformally throughout the Dominion the
English theory of contributory negligence. Such decisions throw no light upon the
doctrines of the civil law. Elsewhere we nd this practice embodied in legislation; for
instance, section 2 of article 2398 of the Code of Portugal reads as follows:
"If in the case of damage there was fault or negligence on the part of the person
injured or in the part of some one else, the indemni cation shall be reduced in the rst
case, and in the second case it shall be appropriated in proportion to such fault or
negligence as provided in paragraphs 1 and 2 of section 2372."
And in article 1304 of the Austrian Code provides that the victim who is partly
changeable with the accident shall stand his damages in proportion to his fault, but
when that proportion is incapable of ascertainment, he shall share the liability equally
with the person principally responsible. The principle of proportional damages appears
to be also adopted in article 51 of the Swiss Code. Even in the United States in
admirality jurisdictions, whose principles are derived from the civil law, common fault in
cases of collision have been disposed of not on the ground of contradictor negligence,
but on that of equal loss, the fault of the one part being offset against that of the other.
(Ralli vs. Troop, 157 U. S. 386; 97.)
The damage of both being added together and the sum equally divided, a decree
is entered in favor of the vessel sustaining the greater loss against the other for the
excess of her damages over one-half of the aggregate sum. (The Manitoba, 122 U. S.,
97)
Exceptional practice appears to prevail in maritime law in other jurisdictions. The
Spanish Code of Commerce, article 827, makes each vessel for its own damage when
both are the fault; this provision restricted to a single class of the maritime accidents,
falls for short of a recognition of the principle of contributory negligence as understood
in American Law, with which, indeed, it has little in common. This is a plain from other
articles of the same code; for instance, article 829, referring to articles 826, 827, and
828, which provides: "In the cases above mentioned the civil action of the owner
against the person liable for the damage is reserved, as well as the criminal liability
which may appear."
The rule of the common law, a hard and fast one, not adjustable with respects of
the faults of the parties, appears to have grown out the original method of trial by jury,
which rendered dif cult a nice balancing of responsibilities and which demanded an
in exible standard as a safeguard against too ready symphaty for the injured. It was
assumed that an exact measure of several concurring faults was unattainable.
"The reason why, in cases of mutual concurring negligence, neither party can
maintain an action against the other, is, not the wrong of the one is set off against the
wrong of the other; it that the law can not measure how much of the damage suffered
is attributable to the plaintiff's own fault. If he were allowed to recover, it might be that
he would obtain from the other party compensation for hiss own misconduct." (Heil vs.
Glanding, 42 Penn. St. Rep., 493, 499.)
"The parties being mutually in fault, there can be no appointment of damages.
The law has no scales to determine in such cases whose wrongdoing weighed most in
the compound that occasioned the mischief." (Railroad vs. Norton, 24 Penn. St. 565,
469.)
Experience with jury trials in negligence cases has brought American courts to
review to relax the vigor of the rule by freely exercising the power of setting aside
verdicts deemed excessive, through the device of granting new trials, unless reduced
damages are stipulated for, amounting to a partial revision of damages by the courts. It
appears to us that the control by the court of the subject matter may be secured on a
moral logical basis and its judgment adjusted with greater nicety to the merits of the
litigants through the practice of offsetting their respective responsibilities. In the civil
law system the desirable end is not deemed beyond the capacity of its tribunals.
Whatever may prove to be the doctrine nally adopted in Spain or in other
countries under the stress and counter stress of novel schemers of legislation, we nd
the theory of damages laid down in the judgment the most consistent with the history
and the principals of our law in these Islands and with its logical development.
Dif culty seems to be apprehended in deciding which acts of the injured party
shall be considered immediate causes of the accident. The test is simple. Distinction
must be between the accident and the injury, between the event itself, without which
there could have been no accident, and those acts of the victim not entering into it,
independent of it, but contributing under review was the displacement of the
crosspiece or the failure to replace it. this produced the event giving occasion for
damages — that is, the sinking of the track and the sliding of the iron rails. To this event,
the act of the plaintiff in walking by the side of the car did not contribute, although it
was an element of the damage which came to himself. Had the crosspiece been out of
place wholly or partly thorough his act of omission of duty, the last would have been
one of the determining causes of the event or accident, for which he would have been
responsible. Where he contributes to the principal occurrence, as one of its determining
factors, he can not recover. Where, in conjunction with the occurrence, he contributes
only to his own injury, he may recover the amount that the defendant responsible for the
event should pay for such injury, less a sum deemed a suitable equivalent for his own
imprudence.
Accepting, though with some hesitation, the judgment of the trial court, xing the
damage incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United
States money, we deduct therefrom 2,500 pesos, the amount fairly attributable to his
negligence, and direct judgment to be entered in favor of the plaintiff for the resulting
sum of 2,500 pesos, with cost of both instances, and ten days hereafter let the case be
remanded to the court below for proper action. So ordered.
Arellano, C.J. Torres, and Mapa, JJ., concur.
Separate Opinions
WILLARD , J., with whom concurs CARSON, J., dissenting :
The knowledge which the plaintiff had in regard to the condition of the track is
indicated by his own evidence. He testified, among other things, as follows:
"Q. Now, describe the best you can the character of the track that ran from the
place where you loaded the irons from the barge up to the point where you
unloaded them on the ground. A. — Well, it was pretty bad character.
xxx xxx xxx
"Q. And you were familiar with the track before that its construction? A. —
Familiar with what?
"Q. Well, you have described it here to the court. A. — Oh, yes; I knew the
condition of the track.
"Q. You knew its conditions as you have described it here at the time you were
working around there? A. — Yes, sir.
xxx xxx xxx
"Q. And while operating it from the side it was necessary for you to step from
board to board on the cross-ties which extended out over the stringers? —
A. Yes, sir.
"Q. And these were very of irregular shape, were they not? — A. They were in
pretty bad condition.
xxx xxx xxx
"Q. And it was not safe to walk along on the outside of these crosspieces? —
A. It was safe if the car stayed on the track. We didn't try to hold the load
on. We tried to hold the car back, keep it from going too fast, because we
knew the track was in bad condition just here, and going down too fast we
could be liable to run off most any time.
"Q. You knew the track was in bad condition when you got hold? — A. Sure, it
was in bad condition.
xxx xxx xxx
"Q. And the accident took place at that point where you believed it to be so
dangerous? A. — Yes, sir.
"Q. But you knew it was dangerous? — A. Why certainly, anybody could see it;
but a workingman had to work in those days or get arrested for a vag here
in Manila."
The court below, while it found that the plaintiff knew in a general way of the bad
condition of the track, found that he was not informed of the exact cause of the
accident, namely, the washing away of the large crosspiece laid upon the ground or
placed upon the posts as the foundation upon which the stripers rested. This nding of
fact to my mind is plainly and manifestly against the weight of the evidence. Ellis, a
witness for the plaintiff, testi ed that on the morning of the accident he called the
attention of McKenna, the foreman, to the defective condition of the track at his precise
point where the accident happened. His testimony in part is as follows:
"A. I called Mr. McKenna. I showed him the track and told him I didn't think it
was safe working, and that if he didn't fix it he was liable to have an
accident; I told him I thought if he put fish plates on it would it. He said,
you keep on fishing around here for fish plates and you will be fishing for
another job the first thing you know." He says, "You see to much."
xxx xxx xxx
"Q. Who else was present at the time you had this conversation with Mr.
McKenna? A. — Well, at that conversation as far as I can remember, we
were all walking down the track and I know that McCoy and Mr. Blakes
was along at the time. I remember them two, but we were all walking down
the track in a bunch, but I disremember them.
xxx xxx xxx
"Q. Was that the exact language that you used, that you wanted some fish
plates put on? — A. No, sir: I told him to look at that track. I says get some
fish plates. I says if there was any fish plates we would fix that.
"Q. What did the fish plates have to do with that? A. — It would have
strengthened that joint.
"Q. Why didn't you put the 8 by 8 which was washed crossways in place? —
A. That would have been taken the raising of the track and digging out
along this upright piece and then putting it up again.
The plaintiff himself testi ed that he was present with Ellis at the time this
conversation was had with McKenna. It thus appears that on the morning in question
the plaintiff and McKenna were standing directly over the place where the accident
happened later in the day. The accident was caused, as the court below found, by the
washing away or displacement of the large 8 by 8 piece of timber. This track was
constructed as all other tracks are, all of it open work, with no oor over the ties, and of
course see the ground and the entire construction of the road, including these large 8
by 8 pieces, the long stringers placed thereon, the ties placed on these stringers, and
the rails placed on the ties. The plaintiff himself must have seen that the 8 by 8 piece of
timber was out of place.
If the testimony of the plaintiff's witnesses is to be believed, the displacement
was more markedly apparent even than it would appear from the testimony of the
defendant's witnesses. According to the plaintiff's witnesses, the water at high tide
reached the place in question and these 8 by 8 pieces were therefore not laid upon the
ground but were placed upon posts driven into the ground, the height of the posts at
this particular place being, according to the testimony of the plaintiff's witnesses, from
a foot to two feet and a half. As has been said, Ellis testi ed that the reason why they
did not put the 8 by 8 back in its place was because that would have required the
raising up of the track and digging out along this upright piece and then putting it up
again.
It conclusively appears from the evidence that the plaintiff, before the accident
happened, knew the exact condition of the track and was informed and knew of the
defect which caused the accident. There was no promise on the part of McKenna to
repair the track.
Under the circumstances the plaintiff was negligent in placing himself on the side
of the car where he knew that he would be injured by the falling of the rails from the car
when they reached this point in the track where the two stringers were without any
support of their ends. He either should have refused to work at all or he should have
placed himself behind the car, on the other side of it, or in front of it, drawing it with a
rope. He was guilty of contributory negligence and is not entitled to recover.
It is, said however, that contributory negligence on the part of the plaintiff in a
case like this is no defense under the law in force in these Islands. To this proposition I
can not agree. The liability of the defendant is based in the majority opinion upon
articles 1101 and 1103 of the Civil Code.
In order to impose such liability upon the defendant, it must appear that its
negligence caused the accident. The reason why contradictory negligence on the part
of the plaintiff is a defense in this class of cases is that the negligence of the defendant
did not alone cause the accident. If nothing but that negligence had existed, the
accident would not have happened and, as I understand it, in every case in which
contradictory negligence is a defense it is made so because the negligence of the
plaintiff is the cause of the accident, to this extent, that if the plaintiff had not been
negligent the accident would not have happened, although the defendant was also
negligent. In other words, the negligence of the defendant is not alone suf cient to
cause the accident. It requires also the negligence of the plaintiff.
There is, so far as I know, nothing in the Civil Code relating to contributory
negligence. The rule of the Roman law was: "Quod quis ex culap sua damnum sentit, no
intelligitur damnum sentire." (Digest, book, 50, tit. 17, rule 203.)
The partidas contain the following provisions:
"The just thing is that a man should suffer the damage which comes to him
through his own fault, and that he can not demand reparation therefor from another."
(Law 25, tit. 5, partida 3.)
"And they even said that when a man received an injury through his own acts, the
grievance should be against himself and not against another." (Law 2, tit. 7, partida 2.)
In several cases in the supreme court of Spain the fact has been negligence that
the plaintiff was himself guilty of negligence, as in the civil judgments of the 4th of June,
1888, and of the 20th of February, 1887, and in the criminal judgments of the 20th of
February 1888, the 90th of March, 1876, and the 6th of October, 1882. These cases do
not throw much light upon the subject. The judgment of the 7th of March, 1902 (93
Jurisprudencia Civil, 391), is, however, directly in point. In that case the supreme court
of Spain said:
"According to the doctrine expressed in article 1902 of the Civil Code, fault or
negligence is a source of obligation when between such negligence and the injury
thereby caused there exists the relation of cause and effect; but in the injury caused
should not be the result of acts or omissions of a third party, the latter has no
obligation to repair the same, even though such acts or omissions were imprudent or
unlawful, and much less when it is shown that the immediate cause of the injury was the
negligence of the injured person party himself.
"For the reasons above stated, and the court below having found that the death
of the deceased was due to his own imprudence, and not therefore due to the absence
of a guard at the grade crossing where the accident occurred, it seems clear that court
in acquitting the railroad company of the complaint led by the widow did not violate
the provisions of the aforesaid article of the Civil Code.
"For the same reason, although the authority granted to the railroad company to
open the grade crossing without a special guard was nulli ed by the subsequent
promulgation of the railroad police law and the regulations for the execution of the
same, the result would be identical, leaving one of the grounds upon which the
judgment of acquittal is based, to wit, that the accident was caused by the imprudence
of the injured party himself, unaffected."
It appears that the accident in this case took place at a grade crossing where,
according to the claim of the plaintiff, it was the duty of the railroad company to
maintain husband was injured by a train at this crossing, his negligence contributing to
the injury according to the ruling of the court below. This judgment, then, amounts to a
holding that a contributory negligence is a defense according to the law of Spain. (See
also judgment of the 21st of October, 1903, vol. 96 p. 400, Jurisprudencia Civil.)
Although in the Civil Code there is no express provision upon the subject, in the
Code of Commerce there is found a distinct declaration upon it in reference to
damages caused by collision at sea. Article 827 of the Code of Commerce is as
follows:
"If both vessels may be blamed for the collision, each one shall for liable for his
own damages, and both shall jointly responsible for the loss and damages suffered to
their cargoes.
That article is an express recognition of the fact that in collision cases
contributory negligence is a defense,
I do not think that this court is justi ed in view of the Roman law, of the
provisions of the Partidas, of the judgment of March 7, 1902, of article 827 of the Code
of Commerce, and in the absence of any declaration upon the subject in the Civil Code,
in saying that it was the intention rule announced in the majority opinion, a rule
diametrically opposed to that put in force by the Code of Commerce.
The chief, is not the only, reason stated in the opinion for adopting the rule that
contradictory negligence is not a defense seems to be that such is the holding of the
later French decisions.
As to whether, if any liability existed in this case, it would be necessary in
accordance with the provisions of the Penal Code, or primary, in accordance with the
provision of the Civil Code, I express no opinion.
The judgment should, I think, be reversed and the defendant acquitted of the
complaint.

SECOND DIVISION
[G.R. No. 169467. February 25, 2010.]
ALFREDO P. PACIS and CLEOPATRA D. PACIS , petitioners, vs .

JEROME JOVANNE MORALES , respondent.
DECISION
CARPIO , J : p
The Case
This petition for review 1 assails the 11 May 2005 Decision 2 and the 19 August
2005 Resolution of the Court of Appeals in CA-G.R. CV No. 60669.
The Facts
On 17 January 1995, petitioners Alfredo P. Pacis and Cleopatra D. Pacis
(petitioners) led with the trial court a civil case for damages against respondent
Jerome Jovanne Morales (respondent). Petitioners are the parents of Alfred Dennis
Pacis, Jr. (Alfred), a 17-year old student who died in a shooting incident inside the Top
Gun Firearms and Ammunitions Store (gun store) in Baguio City. Respondent is the
owner of the gun store.
The facts as found by the trial court are as follows:
On January 19, 1991, Alfred Dennis Pacis, then 17 years old and a rst
year student at the Baguio Colleges Foundation taking up BS Computer Science,
died due to a gunshot wound in the head which he sustained while he was at the
Top Gun Firearm[s] and Ammunition[s] Store located at Upper Mabini Street,
Baguio City. The gun store was owned and operated by defendant Jerome
Jovanne Morales.
With Alfred Pacis at the time of the shooting were Aristedes Matibag and
Jason Herbolario. They were sales agents of the defendant, and at that particular
time, the caretakers of the gun store.
The bullet which killed Alfred Dennis Pacis was red from a gun brought in
by a customer of the gun store for repair.
The gun, an AMT Automag II Cal. 22 Rim re Magnum with Serial No. SN-
H34194 (Exhibit "Q"), was left by defendant Morales in a drawer of a table located
inside the gun store.
Defendant Morales was in Manila at the time. His employee Armando

Jarnague, who was the regular caretaker of the gun store was also not around. He
left earlier and requested sales agents Matibag and Herbolario to look after the
gun store while he and defendant Morales were away. Jarnague entrusted to
Matibag and Herbolario a bunch of keys used in the gun store which included the
key to the drawer where the fatal gun was kept.aEcDTC
It appears that Matibag and Herbolario later brought out the gun from the
drawer and placed it on top of the table. Attracted by the sight of the gun, the
young Alfred Dennis Pacis got hold of the same. Matibag asked Alfred Dennis
Pacis to return the gun. The latter followed and handed the gun to Matibag. It
went off, the bullet hitting the young Alfred in the head.
A criminal case for homicide was led against Matibag before branch VII
of this Court. Matibag, however, was acquitted of the charge against him because
of the exempting circumstance of "accident" under Art. 12, par. 4 of the Revised
Penal Code.
By agreement of the parties, the evidence adduced in the criminal case for
homicide against Matibag was reproduced and adopted by them as part of their
evidence in the instant case. 3
On 8 April 1998, the trial court rendered its decision in favor of petitioners. The
dispositive portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor of
the plaintiffs [Spouses Alfredo P. Pacis and Cleopatra D. Pacis] and against the
defendant [Jerome Jovanne Morales] ordering the defendant to pay plaintiffs —
(1) P30,000.00 as indemnity for the death of Alfred Pacis;
(2) P29,437.65 as actual damages for the hospitalization and burial

expenses incurred by the plaintiffs;
(3) P100,000.00 as compensatory damages;

(4) P100,000.00 as moral damages;
(5) P50,000.00 as attorney's fees.
SO ORDERED. 4
Respondent appealed to the Court of Appeals. In its Decision 5 dated 11 May

2005, the Court of Appeals reversed the trial court's Decision and absolved respondent
from civil liability under Article 2180 of the Civil Code. 6
Petitioners led a motion for reconsideration, which the Court of Appeals denied
in its Resolution dated 19 August 2005.
Hence, this petition.
The Trial Court's Ruling
The trial court held respondent civilly liable for the death of Alfred under Article
2180 in relation to Article 2176 of the Civil Code. 7 The trial court held that the
accidental shooting of Alfred which caused his death was partly due to the negligence
of respondent's employee Aristedes Matibag (Matibag). Matibag and Jason Herbolario
(Herbolario) were employees of respondent even if they were only paid on a
commission basis. Under the Civil Code, respondent is liable for the damages caused
by Matibag on the occasion of the performance of his duties, unless respondent proved
that he observed the diligence of a good father of a family to prevent the damage. The
trial court held that respondent failed to observe the required diligence when he left the
key to the drawer containing the loaded defective gun without instructing his
employees to be careful in handling the loaded gun. EcSCHD
The Court of Appeals' Ruling

The Court of Appeals held that respondent cannot be held civilly liable since there
was no employer-employee relationship between respondent and Matibag. The Court
of Appeals found that Matibag was not under the control of respondent with respect to
the means and methods in the performance of his work. There can be no employer-
employee relationship where the element of control is absent. Thus, Article 2180 of the
Civil Code does not apply in this case and respondent cannot be held liable.
Furthermore, the Court of Appeals ruled that even if respondent is considered an
employer of Matibag, still respondent cannot be held liable since no negligence can be
attributed to him. As explained by the Court of Appeals:
Granting arguendo that an employer-employee relationship existed
between Aristedes Matibag and the defendant-appellant, we nd that no
negligence can be attributed to him.
Negligence is best exempli ed in the case of Picart vs. Smith (37 Phil.
809). The test of negligence is this:
". . . . Could a prudent man, in the position of the person to whom

negligence is attributed, foresee harm to the person injured as a reasonable
consequence of the course about to be pursued? If so, the law imposes a
duty on the actor to refrain from that course or take precaution against its
mischievous results, and the failure to do so constitutes negligence. . . . ."
Defendant-appellant maintains that he is not guilty of negligence and lack

of due care as he did not fail to observe the diligence of a good father of a family.
He submits that he kept the rearm in one of his table drawers, which he locked
and such is already an indication that he took the necessary diligence and care
that the said gun would not be accessible to anyone. He puts [sic] that his store is
engaged in selling rearms and ammunitions. Such items which are per se
dangerous are kept in a place which is properly secured in order that the persons
coming into the gun store would not be able to take hold of it unless it is done
intentionally, such as when a customer is interested to purchase any of the
rearms, ammunitions and other related items, in which case, he may be allowed
to handle the same.
We agree. Much as We sympathize with the family of the deceased,
defendant-appellant is not to be blamed. He exercised due diligence in keeping his
loaded gun while he was on a business trip in Manila. He placed it inside the
drawer and locked it. It was taken away without his knowledge and authority.
Whatever happened to the deceased was purely accidental. 8 AIHDcC
The Issues
Petitioners raise the following issues:
I. THE APPELLATE COURT COMMITTED SERIOUS ERROR IN RENDERING
THE DECISION AND RESOLUTION IN QUESTION IN DISREGARD OF LAW
AND JURISPRUDENCE BY REVERSING THE ORDER OF THE REGIONAL
TRIAL COURT (BRANCH 59) OF BAGUIO CITY NOTWITHSTANDING CLEAR,
AUTHENTIC RECORDS AND TESTIMONIES PRESENTED DURING THE
TRIAL WHICH NEGATE AND CONTRADICT ITS FINDINGS.
II. THE APPELLATE COURT COMMITTED GRAVE, REVERSIBLE ERROR IN
RENDERING THE DECISION AND RESOLUTION IN QUESTION BY
DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS THEREBY IGNORING THE FACTUAL FINDINGS OF THE
REGIONAL TRIAL COURT (BRANCH 59) OF BAGUIO CITY SHOWING
PETITIONER'S CLEAR RIGHTS TO THE AWARD OF DAMAGES. 9
The Ruling of the Court

We find the petition meritorious.
This case for damages arose out of the accidental shooting of petitioners' son.
Under Article 1161 1 0 of the Civil Code, petitioners may enforce their claim for damages
based on the civil liability arising from the crime under Article 100 1 1 of the Revised
Penal Code or they may opt to le an independent civil action for damages under the
Civil Code. In this case, instead of enforcing their claim for damages in the homicide
case led against Matibag, petitioners opted to le an independent civil action for
damages against respondent whom they alleged was Matibag's employer. Petitioners
based their claim for damages under Articles 2176 and 2180 of the Civil Code.
Unlike the subsidiary liability of the employer under Article 103 1 2 of the Revised
Penal Code, 1 3 the liability of the employer, or any person for that matter, under Article
2176 of the Civil Code is primary and direct, based on a person's own negligence.
Article 2176 states:
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done. Such fault
or negligence, if there is no pre-existing contractual relation between the parties, is
called quasi-delict and is governed by the provisions of this Chapter.
This case involves the accidental discharge of a rearm inside a gun store. Under
PNP Circular No. 9, entitled the "Policy on Firearms and Ammunition Dealership/Repair,"
a person who is in the business of purchasing and selling of rearms and ammunition
must maintain basic security and safety requirements of a gun dealer, otherwise his
License to Operate Dealership will be suspended or canceled. 1 4 CAaEDH
Indeed, a higher degree of care is required of someone who has in his

possession or under his control an instrumentality extremely dangerous in character,
such as dangerous weapons or substances. Such person in possession or control of
dangerous instrumentalities has the duty to take exceptional precautions to prevent
any injury being done thereby. 1 5 Unlike the ordinary affairs of life or business which
involve little or no risk, a business dealing with dangerous weapons requires the
exercise of a higher degree of care.
As a gun store owner, respondent is presumed to be knowledgeable about
rearms safety and should have known never to keep a loaded weapon in his store to
avoid unreasonable risk of harm or injury to others. Respondent has the duty to ensure
that all the guns in his store are not loaded. Firearms should be stored unloaded and
separate from ammunition when the rearms are not needed for ready-access
defensive use. 1 6 With more reason, guns accepted by the store for repair should not be
loaded precisely because they are defective and may cause an accidental discharge
such as what happened in this case. Respondent was clearly negligent when he
accepted the gun for repair and placed it inside the drawer without ensuring rst that it
was not loaded. In the rst place, the defective gun should have been stored in a vault.
Before accepting the defective gun for repair, respondent should have made sure that it
was not loaded to prevent any untoward accident. Indeed, respondent should never
accept a rearm from another person, until the cylinder or action is open and he has
personally checked that the weapon is completely unloaded. 1 7 For failing to insure that
the gun was not loaded, respondent himself was negligent. Furthermore, it was not
shown in this case whether respondent had a License to Repair which authorizes him to
repair defective rearms to restore its original composition or enhance or upgrade
firearms. 1 8
Clearly, respondent did not exercise the degree of care and diligence required of
a good father of a family, much less the degree of care required of someone dealing
with dangerous weapons, as would exempt him from liability in this case.
WHEREFORE , we GRANT the petition. We SET ASIDE the 11 May 2005
Decision and the 19 August 2005 Resolution of the Court of Appeals in CA-G.R. CV No.
60669. We REINSTATE the trial court's Decision dated 8 April 1998.
SO ORDERED .
Brion, Del Castillo, Abad and Perez, JJ., concur.
Footnotes
1. Under Rule 45 of the 1997 Rules of Civil Procedure.
2. Penned by Associate Justice Jose Catral Mendoza (now Supreme Court Justice) with
Associate Justices Romeo A. Brawner and Edgardo P. Cruz, concurring.
3. Rollo, pp. 43-44.

4. Id. at 50.
5. Id. at 29-39.
6. The dispositive portion of the Court of Appeals' decision reads:
WHEREFORE, the April 8, 1998 Decision of the Regional Trial Court, Branch 59, Baguio
City, is REVERSED and SET ASIDE and a new one entered dismissing the defendant-
appellant from civil liability under Article 2180 of the Civil Code.
SO ORDERED.
7. Articles 2176 and 2180 of the Civil Code provide:
pre-existing contractual relation between the parties, is called quasi-delict and is
governed by the provisions of this Chapter.
Art. 2180. The obligation imposed by article 2176 is demandable not only for one's own
acts or omissions, but also of those persons for whom one is responsible.
xxx xxx xxx
The owners and managers of an establishment or enterprise are likewise responsible for
damages caused by their employees in the service of the branches in which the latter are
employed or on the occasion of their functions.
xxx xxx xxx
The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage.
8. Rollo, pp. 38-39.

9. Id. at 15.
10. Article 1161 of the Civil Code provides: "Civil obligations arising from criminal offenses
shall be governed by the penal laws, subject to the provisions of Article 2177, and of the
pertinent provisions of Chapter 2, Preliminary Title, on Human Relations, and Title XVIII
of this Book regulating damages."
11. Article 100 of the Revised Penal Code provides that "[e]very person criminally liable for
a felony is also civilly liable."
12. Article 103 of the Revised Penal Code states that "[t]he subsidiary liability in the next
preceding article shall also apply to employers, teachers, persons, and corporations
engaged in any kind of industry for felonies committed by their servants, pupils,
workmen, apprentices, or employees in the discharge of their duties."
13. Maniago v. Court of Appeals, 324 Phil. 34 (1996).
14. See PNP Circular No. 9, Policy on Firearms and Ammunition Dealership/Repair,
<http://www.fed.org.ph/fed/download/PNP Circulars/PNP Circular No. 9.pdf> (visited
18 February 2010). The pertinent provision of the PNP Circular No. 9 reads:
Administrative Sanction
a. There shall be an Administrative Sanction of suspension or cancellation of license
depending on the gravity and nature of the offense on the following prohibited acts:
1) Selling of ammunition to unauthorized persons, entities, security agencies, etc.
2) Selling of display firearm without authority.
3) Failure to maintain the basic security and safety requirements of a gun
dealer and gun repair shop such as vault, fire fighting equipment and
maintenance of security guards from a licensed security agency.
4) Failure to submit monthly sales report on time to FED, CSG [Firearms and Explosives
Division of the PNP Civil Security Group].
5) Unauthorized disposition or selling of firearms intended for
demonstration/test/evaluation and display during gun show purposes.
6) Submission of spurious documents in the application for licenses.
7) Other similar offenses. (Emphasis supplied)
15. 1 J.C. SANCO, TORTS AND DAMAGES 24-25 (5th ed., 1994).
16. See The Fundamentals of Firearms Safety by the Firearms and Explosives Division of
the PNP Civil Security Group, <http://www.fed.org.ph/gunsafety.html> (visited 18
February 2010).
17. Id.
18. See PNP Circular No. 9, Policy on Firearms and Ammunition Dealership/Repair,
<http://www.fed.org.ph/fed/download/PNP Circulars/PNP Circular No. 9.pdf> (visited
18 February 2010).

EN BANC
[G.R. No. L-5691. December 27, 1910.]
S. D. MARTINEZ and his wife, CARMEN ONG DE MARTINEZ , plaintiffs-

appellees, vs . WILLIAM VAN BUSKIRK , defendant-appellant.
Lionel D. Hargis for appellant.

Sanz and Oppisso for appellee.
SYLLABUS
1. MASTER AND SERVANT; DRIVERS OF HORSES; CUSTOM AND USAGE;

NEGLIGENCE. — A coachman or driver, who had driven the horses composing his team
for a considerable time, during which the animals has shown no disposition to become
unruly, left his team as usual and was assisting in unloading the wagon when the horses
bolted and running into the plaintiffs' carriage caused personal injuries to the plaintiff
and damage to the vehicle. It was further shown that, to leave teams under like
circumstances and to assist in unloading the wagon, is the custom of drivers in the city
and that the custom is sanctioned by employers. Held: That acts, the performance of
which has not proven destructive or injurious and which have been generally acquiesced
in by society for so long a time as to have ripened into a custom, can not be held to be
unreasonable or imprudent and that, under the circumstances, the driver was not guilty
of negligence in so leaving his team while assisting in unloading his wagon.
DECISION
MORELAND , J : p
The facts found by the trial court are undisputed by either party in this case. They
are —
"That on the 11th day of September, 1908, the plaintiff, Carmen Ong de
Martinez, was riding in a carromata on Calle Real, district of Ermita, city of Manila,
P.I., along the left-hand side of the street as she was going, when a delivery
wagon belonging to the defendant used for the purpose of transportation of
fodder by the defendant, and to which was attached a pair of horses, came along
the street in the opposite direction to that the in which said plaintiff was
proceeding, and that thereupon the driver of the said plaintiff's carromata,
observing that the delivery wagon of the defendant was coming at great speed,
crowded close to the sidewalk on the left-hand side of the street and stopped, in
order to give defendant's delivery wagon an opportunity to pass by, but that
instead of passing by the defendant's wagon and horses ran into the carromata
occupied by said plaintiff with her child and overturned it, severely wounding said
plaintiff by making a serious cut upon her head, and also injuring the carromata
itself and the harness upon the horse which was drawing it.
xxx xxx xxx
"These facts are not dispute, but the defendant presented evidence to the
effect that the cochero, who was driving his delivery wagon at the time the
accident occurred, was a good servant and was considered a safe and reliable
cochero; that the delivery wagon had sent to deliver some forage at Paco Livery
Stable on Calle Herran, and that for the purpose of delivery thereof the cochero
driving the team as defendant's employee tied the driving lines of the horses to
the front end of the delivery wagon and then went back inside of the wagon for
the purpose of unloading the forage to be delivered; that while unloading the
forage and in the act of carrying some of it out, another vehicle drove by, the
driver of which cracked a whip and made some other noises, which frightened the
horses attached to the delivery wagon and they ran away, and the driver was
thrown from the inside of the wagon out through the rear upon the ground and
was unable to stop the horses; that the horses then ran up and on which street
they came into collision with the carromata in which the plaintiff, Carmen Ong de
Martinez, was riding."
The defendant himself was not with the vehicle on the day in question.
Upon these facts the court below found the defendant guilty of negligence and
gave judgment against him for P442.50, with interest thereon at the rate of 6 per cent
per annum from the 17th day of October, 1908, and for the costs of the action. The
case is before us on an appeal from that judgment.
There is no general law of negligence in the Philippine Islands except that
embodied in the Civil Code. The provisions of that code pertinent to this case are —
"Art. 1902. A person who by an act or omission causes damage to
another when there is fault or negligence shall be obliged to repair the damage so
done.
"Art. 1903. The obligation imposed by preceding article is demandable,
not only for personal acts and omissions, but also for those of the persons for
whom they should be responsible.
"The father, and on his death or incapacity the mother, is liable for the
damages caused by the minors who live with them.
"Guardians are liable for the damages caused by minors or incapacitated
persons who are under their authority and live with them.
"Owners of directors of an establishment or enterprise are equally liable for
the damages caused by the employees in the service of the branches in which the
latter may be employed or on account of their duties.
"The State is liable in this sense when it acts through a special agent, but
not when the damages should have been caused by the official to whom properly
it pertained to do the act performed, in which case the provisions of the preceding
article shall be applicable.
"Finally, masters or directors of arts and trades are liable for the damages
caused by their pupils or apprentices while they are under their custody.
"The liability referred to in this article shall cease when the persons
mentioned therein prove that they employed all the diligence of a good father of a
family to avoid the damage."
Passing the question whether or not an employer who has furnished a gentle and
tractable team and a trusty and capable driver is, under the last paragraph of the above
provisions, liable for the negligence of such driver in handling the team, we are of the
opinion that the judgment must be reversed upon the ground that the evidence does
not disclose that the cochero was negligent.
While the law relating to negligence in this jurisdiction may possibly be some
what different from that in Anglo-Saxon countries, a question we do not now discuss,
the rules under which the fact of negligence is determined are, nevertheless, generally
the same. That is to say, while the law designating the person responsible for a
negligent act may not be the same here as in many jurisdictions, the law determining
what is a negligent act is the same here, generally speaking, as elsewhere. (Supreme
court of Spain, 4 December, 1903; 16 May, 1893; 27 June, 1894; 9 April, 1896; 14
March, 1901; 2 March, 1904; 7 February, 1905; 16 June, 1905; 23 June, 1905; 13 April,
1903; 7 March, 1902; 12 June, 1900; 2 March, 1907; 18 March, 1898; 3 June, 1901.)
It appears from the undisputed evidence that the horses which caused the
damage were gentle and tractable; that the cochero was experienced and capable; that
he had driven one of the horses several years and the other ve or six months; that he
had been in the habit, during all that time, of leaving them in the condition in which they
were left on the day of the accident; that they had never run away up to that time and
there had been, therefore, no accident due to such practice; that to leave the horses and
assist in unloading the merchandise in the manner described on the day of the accident
was the custom of all cochero who delivered merchandise of the character of that
which was being delivered by the cochero of the defendant on the day in question,
which custom was sanctioned by their employers.
In our judgment, the cochero of the defendant was not negligent in leaving the
horses in the manner described by the evidence in this case, either under Spanish or
American jurisprudence. (Lynch vs. Nurdin, 1 Q. B., 422; Rumsey vs. Nelson, 58 Vt., 590;
Drake vs. Mount, 33 N. J. L., 442; Hoboken Land and Improvement Co. vs. Lally, 48 N. J.
L., 604; Wasmer vs. D. L. & W. R. R. Co., 80 N. Y., 212.)
In the case of Hayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170), Lord Kenyon
said:
"He was performing his duty while removing the goods into the house, and,
if every person who suffered a cart to remain in the street while he took goods out
of it was obliged to employ another to look after the horses, it would be
impossible for the business of the metropolis to go on.
In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said:
"The degree of care required of the plaintiff, or those in charged of his
horse, at the time of the injury, is that which would be exercised by a person of
ordinary care and prudence under like circumstances. It can not be said that the
fact of leaving the horse unhitched is in itself negligence. Whether it is negligence
to leave a horse unhitched must be depend upon the disposition of the horse;
whether he was under the observation and control of some person all the time,
and many other circumstances; and is a question to be determined by the jury
from the facts of each case."
In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it was error on
the part of the trial court to refuse to charge that "it is not negligence for the driver of a
quite, gentle horse to leave him unhitched and otherwise unattended on the side of a
public highways while the driver is upon the sidewalk loading goods on the wagon." The
said court closed its opinion with these words:
"There was evidence which could have fully justified the jury in finding that
the horse was quite and gentle, and that the driver was upon the sidewalk loading
goods on the wagon, at time of the alleged injury, and that the horse had been
used for years in that way without accident. The refusal of the trial court to
charge as requested left the jury free to find was verdict against the defendant,
although the jury was convinced that these facts were proven.
In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held:
"That evidence that a servant, whom traders employed to deliver goods,
upon stopping with his horse and wagon to deliver a parcel at a house from fifty
to a hundred rods from a railroad crossing, left the horse unfastened for four or
five minutes while he was in the house, knowing that it was not afraid of cars,
and having used it for three or four months without ever hitching it or knowing it
to start, is not conclusive, as a matter of law, of a want of due care on his part."
The duty, a violation of which is claimed to be negligence in the respect in

question, is to exercise reasonable care and prudence. Where reasonable care is
employed in doing an act not itself illegal or inherently likely to produce damage to
others, there will be no liability, although damage in fact ensues. (Milwaukee Ry. Co. vs.
Arms, 91 U. S., 489; Parrott vs. Wells, 15 Wall., 524; Brown vs. Kendall, 6 Cushing, 292;
Jackson Architectural Iron Works vs. Hurlbut, 158 N. Y., 34 Wester eld vs. Levis, 43 La.
An., 63; Niosi vs. Empire Steam Laundry, 117 Cal., 257.)
The act of defendant's driver in leaving the horses in the manner proved was not
unreasonable or imprudent. Acts the performance of which has not proved destructive
or injurious and which have, therefore, been acquiesced in by society for so long a time
that they have ripened into custom, can not be held to be themselves unreasonable or
imprudent. Indeed the very reason why they have been permitted by society is that they
bene cial rather than prejudicial. Accidents sometimes happen and injuries result from
the most ordinary acts of life. But such are not their natural or customary results. To
hold that, because such an act once resulted in accident or injury, the actor is
necessarily negligent, is to go far. The fact that the doctrine of res ipsa loquitur is
sometimes successfully invoked in such a case, does not in any sense militate against
the reasoning presented. That maxim at most only creates a prima facie case, and that
only in the absence of proof of the circumstances under which the act complained of
was performed. It is something invoked in favor of the plaintiff before defendant's case
showing the conditions and circumstances under which the injury occurred, the creative
reason for the doctrine of res ipsa loquitur disappears. This is demonstrated by the
case of Inland and Seaboard Costing Co. vs. Tolson (139 U.S., 551), where the court
said (p. 554):
". . . The whole effect of the instruction in question, as applied to the case
before the jury, was that if the steamboat, on a calm day and in smooth water,
was thrown with such force against a wharf properly built, as to tear up some of
the planks of the flooring, this would be prima facie evidence of negligence on the
part of the defendant's agent in making the landing, unless upon the whole
evidence in the case this prima facie evidence was rebutted. As such damage to a
wharf is not ordinarily done by a steamboat under control of her officers and
carefully managed by them, evidence that such damage was done in this case
was prima facie, and, if unexplained, sufficient evidence of negligence on their
part, and the jury might properly be so instructed."
There was presented in this case, and by the plaintiffs themselves, not only the
fact of the runway and the accident resulting therefrom, but also the conditions under
which the runaway occurred. Those conditions showing of themselves that the
defendant's cochero was not negligent in the management of the horse, the prima facie
case in plaintiffs' favor, if any, was destroyed as soon as made.
It is a matter of common knowledge as well as proof that it is the universal
practice of merchants to deliver merchandise of the kind of that being delivered at the
time of the injury, in the manner in which that was then being delivered; and that it is the
universal practice to leave the horses in the manner in which they were left at the time
of the accident. This is the custom in all cities. It has not been productive of accidents
or injuries. The public, nding itself unprejudiced by such practice, has acquiesced for
years without objection. Ought the public now, through the courts, without prior
objection or notice, to be permitted to reverse the practice of decades and thereby
make culpable and guilty one who had every reason and assurance to believe that he
was acting under the sanction of the strongest of all civil forces, the custom of a
people? We think not.
The judgment is reversed, without special finding as to costs. So ordered.
Arellano, C.J., Mapa, Johnson, Carson and Trent, JJ., concur.
Separate Opinions
TORRES , J., dissenting :
I am of the opinion that the judgment should be affirmed.

FIRST DIVISION
[G.R. No. L-33722. July 29, 1988.]
FEDERICO YLARDE and ADELAIDA DORONIO , petitioners, vs. EDGARDO

AQUINO, MAURO SORIANO and COURT OF APPEALS , respondents.
Buenaventura C. Evangelista for petitioners.

Modesto V. Cabanela for respondent Edgardo Aquino.
Manuel P. Pastor for respondent Mauro Soriano.
SYLLABUS
1. CIVIL LAW; QUASI-DELICT; ART. 2180, CIVIL CODE; ONLY TEACHERS OF ACADEMIC
SCHOOLS SHOULD BE ANSWERABLE FOR TORTS COMMITTED BY THEIR STUDENTS;
RULING IN AMADORA VS. COURT OF APPEALS APPLIED IN THE CASE AT BAR. — As
regards the principal, We hold that he cannot be made responsible for the death of the
child Ylarde, he being the head of an academic school and not a school of arts and trades.
This is in line with Our ruling in Amadora vs. Court of Appeals, wherein this Court
thoroughly discussed the doctrine that under Article 2180 of the Civil Code, it is only the
teacher and not the head of an academic school who should be answerable for torts
committed by their students. This Court went on to say that in a school of arts and trades,
it is only the head of the school who can be held liable. Hence, applying the said doctrine to
this case, We rule that private respondent Soriano, as principal, cannot be held liable for the
reason that the school he heads is an academic school and not a school of arts and
trades. Besides, as clearly admitted by private respondent Aquino, private respondent
Soriano did not give any instruction regarding the digging. From the foregoing, it can be
easily seen that private respondent Aquino can be held liable under Article 2180 of the Civil
Code as the teacher-in-charge of the children for being negligent in his supervision over
them and his failure to take the necessary precautions to prevent any injury on their
persons.
2. ID.; ID.; ART. 2176, CIVIL CODE; THE ACTS AND OMISSIONS OF RESPONDENT
AMOUNTED TO FAULT AND GROSS NEGLIGENCE WHICH HAVE DIRECT CAUSAL
RELATION TO THE DEATH OF THE VICTIM. — However, as earlier pointed out, petitioners
base the alleged liability of private respondent Aquino on Article 2176 which is separate
and distinct from that provided for in Article 2180. With this in mind, the question We need
to answer is this: Were there acts and omissions on the part of private respondent Aquino
amounting to fault or negligence which have direct causal relation to the death of his pupil
Ylarde? Our answer is in the affirmative. He is liable for damages. From a review of the
record of this case, it is very clear that private respondent Aquino acted with fault and
gross negligence when he: (1) failed to avail himself of services of adult manual laborers
and instead utilized his pupils aged ten to eleven to make an excavation near the one-ton
concrete stone which he knew to be a very hazardous task; (2) required the children to
remain inside the pit even after they had finished digging, knowing that the huge block was
lying nearby and could be easily pushed or kicked aside by any pupil who by chance may
go to the perilous area; (3) ordered them to level the soil around the excavation when it
was so apparent that the huge stone was at the brink of falling; (4) went to a place where
he would not be able to check on the children's safety; and (5) left the children close to the
excavation, an obviously attractive nuisance.
3. ID.; ID.; ID.; ID.; CASE AT BAR. — The negligent act of private respondent Aquino in
leaving his pupils in such a dangerous site has a direct causal connection to the death of
the child Ylarde. Left by themselves, it was but natural for the children to play around. Tired
from the strenuous digging, they just had to amuse themselves with whatever they found.
Driven by their playful and adventurous instincts and not knowing the risk they were facing,
three of them jumped into the hole while the other one jumped on the stone. Since the
stone was so heavy and the soil was loose from the digging, it was also a natural
consequence that the stone would fall into the hole beside it, causing injury on the
unfortunate child caught by its heavy weight. Everything that occurred was the natural and
probable effect of the negligent acts of private respondent Aquino. Needless to say, the
child Ylarde would not have died were it not for the unsafe situation created by private
respondent Aquino which exposed the lives of all the pupils concerned to real danger.
4. ID.; ID.; ID.; DEGREE OF CARE REQUIRED OF MINOR CHILDREN; CASE AT BAR. — In
ruling that the child Ylarde was imprudent, it is evident that the lower court did not
consider his age and maturity. This should not be the case. The degree of care required to
be exercised must vary with the capacity of the person endangered to care for himself. A
minor should not be held to the same degree of care as an adult, but his conduct should be
judged according to the average conduct of persons of his age and experience. The
standard of conduct to which a child must conform for his own protection is that degree
of care ordinarily exercised by children of the same age, capacity, discretion, knowledge
and experience under the same or similar circumstances. Bearing this in mind, We cannot
charge the child Ylarde with reckless imprudence.
5. ID.; ID.; ID.; DILIGENCE OF A VERY CAUTIOUS PERSON AS A DEFENSE TO ART. 2176,
CIVIL CODE; ABSENT IN THE CASE AT BAR. — The contention that private respondent
Aquino exercised the utmost diligence of a very cautious person is certainly without
cogent basis. A reasonably prudent person would have foreseen that bringing children to
an excavation site, and more so, leaving them there all by themselves, may result in an
accident. An ordinarily careful human being would not assume that a simple warning "not
to touch the stone" is sufficient to cast away all the serious danger that a huge concrete
block adjacent to an excavation would present to the children. Moreover, a teacher who
stands in loco parentis to his pupils would have made sure that the children are protected
from all harm in his company.
6. ID.; ID.; ID.; PAYMENT FOR DAMAGES ORDERED BY THE COURT. — We close by
categorically stating that a truly careful and cautious person would have acted in all
contrast to the way private respondent Aquino did. Were it not for his gross negligence,
the unfortunate incident would not have occurred and the child Ylarde would probably be
alive today, a grown-man of thirty-five. Due to his failure to take the necessary precautions
to avoid the hazard, Ylarde's parents suffered great anguish all these years. In view of the
foregoing, the petition is hereby granted and the questioned judgment of the respondent
court is reversed and set aside and another judgment is hereby rendered ordering private
respondent Edgardo Aquino to pay petitioners the following: (1) Indemnity for the death of
Child Ylarde — P30,000.00; (2) Exemplary damages — 10,000.00; (3) Moral damages —
20,000.00.
DECISION
GANCAYCO , J : p
In this petition for review on certiorari seeking the reversal of the decision of the Court of
Appeals in CA-G.R. No. 36390-R entitled "Federico Ylarde, et al. vs. Edgardo Aquino, et al.,"
a case which originated from the Court of First Instance of Pangasinan, We are again
called upon to determine the responsibility of the principals and teachers towards their
students or pupils.
In 1963, private respondent Mariano Soriano was the principal of the Gabaldon Primary
School, a public educational institution located in Tayug, Pangasinan. Private respondent
Edgardo Aquino was a teacher therein. At that time, the school was littered with several
concrete blocks which were remnants of the old school shop that was destroyed in World
War II. Realizing that the huge stones were serious hazards to the schoolchildren, another
teacher by the name of Sergio Banez stated burying them one by one as early as 1962. In
fact, he was able to bury ten of these blocks all by himself.
Deciding to help his colleague, private respondent Edgardo Aquino gathered eighteen of
his male pupils, aged ten to eleven, after class dismissal on October 7, 1963. Being their
teacher-in-charge, he ordered them to dig beside a one-ton concrete block in order to
make a hole wherein the stone can be buried. The work was left unfinished. The following
day, also after classes, private respondent Aquino called four of the original eighteen
pupils to continue the digging. These four pupils — Reynaldo Alonso, Francisco Alcantara,
Ismael Abaga and Novelito Ylarde, dug until the excavation was one meter and forty
centimeters deep. At this point, private respondent Aquino alone continued digging while
the pupils remained inside the pit throwing out the loose soil that was brought about by
the digging.
When the depth was right enough to accommodate the concrete block, private respondent
Aquino and his four pupils got out of the hole. Then, said private respondent left the
children to level the loose soil around the open hole while he went to see Banez who was
about thirty meters away. Private respondent wanted to borrow from Banez the key to the
school workroom where he could get some rope. Before leaving, private respondent
Aquino allegedly told the children "not to touch the stone."
A few minutes after private respondent Aquino left, three of the four kids, Alonso,
Alcantara and Ylarde, playfully jumped into the pit. Then, without any warning at all, the
remaining Abaga jumped on top of the concrete block causing it to slide down towards
the opening. Alonso and Alcantara were able to scramble out of the excavation on time but
unfortunately for Ylarde, the concrete block caught him before he could get out, pinning
him to the wall in a standing position. As a result thereof, Ylarde sustained the following
injuries:
"1. Contusion with hematoma, left inguinal region and suprapublic region.
2. Contusion with occhymosis, entire acrotal region. prLL
3. Lacerated wound, left lateral aspect of penile skin with phimosis.

4. Abrasion, gluteal region, bilateral.
5. Intraperitoneal and extrapertitoneal extravasation of blood and urine about

2 liters.

6. Fracture, simple, symphesis pubis.
7. Ruptured (macerated) urinary bladder with body of bladder almost entirely
separated from its neck.
REMARKS:
1. Above were incurred by crushing injury.

2. Prognosis very poor.
(Sgd.) MELQUIADES A. BRAVO

Physician on Duty." 1
Three days later, Novelito Ylarde died.

Ylarde's parents, petitioners in this case, filed a suit for damages against both private
respondents Aquino and Soriano. The lower court dismissed the complaint on the
following grounds: (1) that the digging done by the pupils is in line with their course called
Work Education; (2) that Aquino exercised the utmost diligence of a very cautious person;
and (3) that the demise of Ylarde was due to his own reckless imprudence. 2
On appeal, the Court of Appeals affirmed the Decision of the lower court.
Petitioners base their action against private respondent Aquino on Article 2176 of the Civil
Code for his alleged negligence that caused their son's death while the complaint against
respondent Soriano as the head of school is founded on Article 2180 of the same Code.
Article 2176 of the Civil Code provides:
"Art. 2176. Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this Chapter."
On the other hand, the applicable provision of Article 2180 states:

"Art. 2180. ...
xxx xxx xxx

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

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

(1) Indemnity for the death of Child Ylarde P30,000.00
(2) Exemplary damages 10,000.00
(3) Moral damages 20,000.00
SO ORDERED.
Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.
Footnotes
1. Pages 2-3, Rollo.

2. Decision of the Court of First Instance of Pangasinan, page 22, Original Record.
4. G.R. No. L-47745, April 15, 1988.
5. Sangco, Philippine Law on Torts and Damages, 1978 ed., p. 62.
6. Ibid, p. 123.
7. Exh. "B," Original Exhibit.
8. Decision of the Court of Appeals; page 33, Rollo.

THIRD DIVISION
[G.R. No. 166869. February 16, 2010.]
PHILIPPINE HAWK CORPORATION , petitioner, vs . VIVIAN TAN LEE ,

respondent.
DECISION
PERALTA , J : p
This is a Petition for Review on Certiorari 1 of the Decision of the Court of

Appeals in CA-G.R. CV No. 70860, promulgated on August 17, 2004, a rming with
modi cation the Decision of the Regional Trial Court (RTC) of Quezon City, Branch 102,
dated March 16, 2001, in Civil Case No. Q-91-9191, ordering petitioner Philippine Hawk
Corporation and Margarito Avila to jointly and severally pay respondent Vivian Tan Lee
damages as a result of a vehicular accident.
The facts are as follows:
On March 15, 2005, respondent Vivian Tan Lee led before the RTC of Quezon
City a Complaint 2 against petitioner Philippine Hawk Corporation and defendant
Margarito Avila for damages based on quasi-delict, arising from a vehicular accident
that occurred on March 17, 1991 in Barangay Buensoceso, Gumaca, Quezon. The
accident resulted in the death of respondent's husband, Silvino Tan, and caused
respondent physical injuries.
On June 18, 1992, respondent led an Amended Complaint, 3 in her own behalf
and in behalf of her children, in the civil case for damages against petitioner.
Respondent sought the payment of indemnity for the death of Silvino Tan, moral and
exemplary damages, funeral and interment expenses, medical and hospitalization
expenses, the cost of the motorcycle's repair, attorney's fees, and other just and
equitable reliefs.
The accident involved a motorcycle, a passenger jeep, and a bus with Body No.
119. The bus was owned by petitioner Philippine Hawk Corporation, and was then being
driven by Margarito Avila.
In its Answer, 4 petitioner denied liability for the vehicular accident, alleging that
the immediate and proximate cause of the accident was the recklessness or lack of
caution of Silvino Tan. Petitioner asserted that it exercised the diligence of a good
father of the family in the selection and supervision of its employees, including
Margarito Avila. CcaDHT
On March 25, 1993, the trial court issued a Pre-trial Order 5 stating that the
parties manifested that there was no possibility of amicable settlement between them.
However, they agreed to stipulate on the following facts:
1. On March 17, 1991, in Bgy. Buensoceso, Gumaca, Quezon, plaintiff Vivian
Lee Tan and her husband Silvino Tan, while on board a motorcycle with
[P]late No. DA-5480 driven by the latter, and a Metro Bus with [P]late No.
NXR-262 driven by Margarito Avila, were involved in an accident;
2. As a result of the accident, Silvino Tan died on the spot while plaintiff
Vivian Lee Tan suffered physical injuries which necessitated medical
attention and hospitalization;
3. The deceased Silvino Tan is survived by his wife, plaintiff Vivian Lee Tan
and four children, three of whom are now residents of the United States;
and
4. Defendant Margarito Avila is an employee of defendant Philippine Hawk. 6
The parties also agreed on the following issues:

1. Whether or not the proximate cause of the accident causing physical
injuries upon the plaintiff Vivian Lee Tan and resulting in the death of the
latter's husband was the recklessness and negligence of Margarito Avila or
the deceased Silvino Tan; and
2. Whether or not defendant Philippine Hawk Transport Corporation exercised
the diligence of a good father of the family in the selection and supervision
of its driver Margarito Avila. 7
Respondent testi ed that on March 17, 1991, she was riding on their motorcycle
in tandem with her husband, who was on the wheel, at a place after a Caltex gasoline
station in Barangay Buensoceso, Gumaca, Quezon on the way to Lopez, Quezon. They
came from the Pasumbal Machine Shop, where they inquired about the repair of their
tanker. They were on a stop position at the side of the highway; and when they were
about to make a turn, she saw a bus running at fast speed coming toward them, and
then the bus hit a jeep parked on the roadside, and their motorcycle as well. She lost
consciousness and was brought to the hospital in Gumaca, Quezon, where she was
con ned for a week. She was later transferred to St. Luke's Hospital in Quezon City,
Manila. She suffered a fracture on her left chest, her left arm became swollen, she felt
pain in her bones, and had high blood pressure. 8
Respondent's husband died due to the vehicular accident. The immediate cause
of his death was massive cerebral hemorrhage. 9
Respondent further testi ed that her husband was leasing 1 0 and operating a
Caltex gasoline station in Gumaca, Quezon that yielded one million pesos a year in
revenue. They also had a copra business, which gave them an income of P3,000.00 a
month or P36,000.00 a year. 1 1
Ernest Ovial, the driver of the passenger jeep involved in the accident, testi ed
that in the afternoon of March 17, 1991, his jeep was parked on the left side of the
highway near the Pasumbal Machine Shop. He did not notice the motorcycle before the
accident. But he saw the bus dragging the motorcycle along the highway, and then the
bus bumped his jeep and sped away. 1 2
For the defense, Margarito Avila, the driver of petitioner's bus, testi ed that on
March 17, 1999, at about 4:30 p.m., he was driving his bus at 60 kilometers per hour on
the Maharlika Highway. When they were at Barangay Buensoceso, Gumaca, Quezon, a
motorcycle ran from his left side of the highway, and as the bus came near, the
motorcycle crossed the path of the bus, and so he turned the bus to the right. He heard
a loud banging sound. From his side mirror, he saw that the motorcycle turned turtle
("bumaliktad"). He did not stop to help out of fear for his life, but drove on and
surrendered to the police. He denied that he bumped the motorcycle. 1 3

Avila further testi ed that he had previously been involved in sideswiping
incidents, but he forgot how many times. 1 4
Rodolfo Ilagan, the bus conductor, testi ed that the motorcycle bumped the left
side of the bus that was running at 40 kilometers per hour. 1 5
Domingo S. Sisperes, operations o cer of petitioner, testi ed that, like their
other drivers, Avila was subjected to and passed the following requirements: TcHDIA
(1) Submission of NBI clearance;

(2) Certification from his previous employer that he had no bad record;
(3) Physical examination to determine his fitness to drive;
(4) Test of his driving ability, particularly his defensive skill; and
(5) Review of his driving skill every six months. 1 6
Efren Delantar, a Barangay Kagawad in Buensoceso, Gumaca, Quezon, testi ed
that the bus was running on the highway on a straight path when a motorcycle, with a
woman behind its driver, suddenly emerged from the left side of the road from a
machine shop. The motorcycle crossed the highway in a zigzag manner and bumped
the side of the bus. 1 7
In its Decision dated March 16, 2001, the trial court rendered judgment against
petitioner and defendant Margarito Avila, the dispositive portion of which reads:
ACCORDINGLY, MARGARITO AVILA is adjudged guilty of simple
negligence, and judgment is hereby rendered in favor of the plaintiff Vivian Lee
Tan and h[er] husband's heirs ordering the defendants Philippine Hawk
Corporation and Margarito Avila to pay them jointly and solidarily the sum of
P745,575.00 representing loss of earnings and actual damages plus P50,000.00
as moral damages. 1 8
The trial court found that before the collision, the motorcycle was on the left side
of the road, just as the passenger jeep was. Prior to the accident, the motorcycle was in
a running position moving toward the right side of the highway. The trial court agreed
with the bus driver that the motorcycle was moving ahead of the bus from the left side
of the road toward the right side of the road, but disagreed that the motorcycle
crossed the path of the bus while the bus was running on the right side of the road. 1 9
The trial court held that if the bus were on the right side of the highway, and
Margarito Avila turned his bus to the right in an attempt to avoid hitting the motorcyle,
then the bus would not have hit the passenger jeep, which was then parked on the left
side of the road. The fact that the bus also hit the passenger jeep showed that the bus
must have been running from the right lane to the left lane of the highway, which caused
the collision with the motorcycle and the passenger jeep parked on the left side of the
road. The trial court stated that since Avila saw the motorcycle before the collision, he
should have stepped on the brakes and slowed down, but he just maintained his speed
and veered to the left. 2 0 The trial court found Margarito Avila guilty of simple
negligence.
The trial court held petitioner bus company liable for failing to exercise the
diligence of a good father of the family in the selection and supervision of Avila, having
failed to sufficiently inculcate in him discipline and correct behavior on the road. 2 1 DaAISH

On appeal, the Court of Appeals a rmed the decision of the trial court with
modification in the award of damages. The dispositive portion of the decision reads:
WHEREFORE, foregoing premises considered, the appeal is DENIED. The
assailed decision dated March 16, 2001 is hereby AFFIRMED with
MODIFICATION. Appellants Philippine Hawk and Avila are hereby ordered to pay
jointly and severally appellee the following amount: (a) P168,019.55 as actual
damages; (b) P10,000.00 as temperate damages; (c) P100,000.00 as moral
damages; (d) P590,000.00 as unearned income; and (e) P50,000.00 as civil
indemnity. 2 2
Petitioner filed this petition, raising the following issues:

1) The Court of Appeals committed grave abuse of discretion
amounting to lack of jurisdiction in passing upon an issue, which had
not been raised on appeal, and which had, therefore, attained nality,
in total disregard of the doctrine laid down by this Court in Abubakar
v. Abubakar, G.R. No. 134622, October 22, 1999.
2) The Court of Appeals committed reversible error in its nding that the
petitioner's bus driver saw the motorcycle of private respondent
executing a U-turn on the highway "about fteen (15) meters away"
and thereafter held that the Doctrine of Last Clear was applicable to
the instant case. This was a palpable error for the simple reason that
the aforesaid distance was the distance of the witness to the bus and
not the distance of the bus to the respondent's motorcycle, as clearly
borne out by the records.
3) The Court of Appeals committed reversible error in awarding
damages in total disregard of the established doctrine laid down in
Danao v. Court of Appeals, 154 SCRA 447 and Viron Transportation
Co., Inc. v. Delos Santos, G.R. No. 138296, November 22, 2000. 2 3
In short, the issues raised by petitioner are: (1) whether or not negligence may be
attributed to petitioner's driver, and whether negligence on his part was the proximate
cause of the accident, resulting in the death of Silvino Tan and causing physical injuries
to respondent; (2) whether or not petitioner is liable to respondent for damages; and
(3) whether or not the damages awarded by respondent Court of Appeals are proper.
Petitioner seeks a review of the factual ndings of the trial court, which were
sustained by the Court of Appeals, that petitioner's driver was negligent in driving the
bus, which caused physical injuries to respondent and the death of respondent's
husband.
The rule is settled that the ndings of the trial court, especially when a rmed by
the Court of Appeals, are conclusive on this Court when supported by the evidence on
record. 2 4 The Court has carefully reviewed the records of this case, and found no
cogent reason to disturb the findings of the trial court, thus: DACaTI
The Court agree[s] with the bus driver Margarito that the motorcycle was
moving ahead of the bus towards the right side from the left side of the road, but
disagrees with him that it crossed the path of the bus while the bus was running
on the right side of the highway.
If the bus were on the right side of the highway and Margarito turned his
bus to the right in an attempt to avoid hitting it, then the bus would not have hit
the passenger jeep vehicle which was then parked on the left side of the road. The
fact that the bus hit the jeep too, shows that the bus must have been running to
the left lane of the highway from right to the left, that the collision between it and
the parked jeep and the moving rightways cycle became inevitable. Besides,
Margarito said he saw the motorcycle before the collision ahead of the bus; that
being so, an extra-cautious public utility driver should have stepped on his brakes
and slowed down. Here, the bus never slowed down, it simply maintained its
highway speed and veered to the left. This is negligence indeed. 2 5
Petitioner contends that the Court of Appeals was mistaken in stating that the
bus driver saw respondent's motorcycle "about 15 meters away" before the collision,
because the said distance, as testi ed to by its witness Efren Delantar Ong, was Ong's
distance from the bus, and not the distance of the bus from the motorcycle. Petitioner
asserts that this mistaken assumption of the Court of Appeals made it conclude that
the bus driver, Margarito Avila, had the last clear chance to avoid the accident, which
was the basis for the conclusion that Avila was guilty of simple negligence.
A review of the records showed that it was petitioner's witness, Efren Delantar
Ong, who was about 15 meters away from the bus when he saw the vehicular accident.
2 6 Nevertheless, this fact does not affect the nding of the trial court that petitioner's
bus driver, Margarito Avila, was guilty of simple negligence as a rmed by the appellate
court. Foreseeability is the fundamental test of negligence. 2 7 To be negligent, a
defendant must have acted or failed to act in such a way that an ordinary reasonable
man would have realized that certain interests of certain persons were unreasonably
subjected to a general but definite class of risks. 2 8
In this case, the bus driver, who was driving on the right side of the road, already
saw the motorcycle on the left side of the road before the collision. However, he did not
take the necessary precaution to slow down, but drove on and bumped the motorcycle,
and also the passenger jeep parked on the left side of the road, showing that the bus
was negligent in veering to the left lane, causing it to hit the motorcycle and the
passenger jeep.
Whenever an employee's negligence causes damage or injury to another, there
instantly arises a presumption that the employer failed to exercise the due diligence of
a good father of the family in the selection or supervision of its employees. 2 9 To avoid
liability for a quasi-delict committed by his employee, an employer must overcome the
presumption by presenting convincing proof that he exercised the care and diligence of
a good father of a family in the selection and supervision of his employee. 3 0 SacTCA
The Court upholds the nding of the trial court and the Court of Appeals that
petitioner is liable to respondent, since it failed to exercise the diligence of a good
father of the family in the selection and supervision of its bus driver, Margarito Avila, for
having failed to su ciently inculcate in him discipline and correct behavior on the road.
Indeed, petitioner's tests were concentrated on the ability to drive and physical tness
to do so. It also did not know that Avila had been previously involved in sideswiping
incidents.
As regards the issue on the damages awarded, petitioner contends that it was
the only one that appealed the decision of the trial court with respect to the award of
actual and moral damages; hence, the Court of Appeals erred in awarding other kinds
of damages in favor of respondent, who did not appeal from the trial court's decision.
Petitioner's contention is unmeritorious.
Section 8, Rule 51 of the 1997 Rules of Civil Procedure provides:
SEC. 8. Questions that may be decided. — No error which does not
affect the jurisdiction over the subject matter or the validity of the judgment
appealed from or the proceedings therein will be considered unless stated in the
assignment of errors, or closely related to or dependent on an assigned error and
properly argued in the brief, save as the court pass upon plain errors and clerical
errors.
Philippine National Bank v. Rabat 3 1 cited the book 3 2 of Justice Florenz D.

Regalado to explain the section above, thus:
In his book, Mr. Justice Florenz D. Regalado commented on this section,
thus:
1. Sec. 8, which is an amendment of the former Sec. 7 of this Rule,

now includes some substantial changes in the rules on assignment of errors. The
basic procedural rule is that only errors claimed and assigned by a party will be
considered by the court, except errors affecting its jurisdiction over the subject
matter. To this exception has now been added errors affecting the validity of the
judgment appealed from or the proceedings therein.
Also, even if the error complained of by a party is not expressly stated in
his assignment of errors but the same is closely related to or dependent on an
assigned error and properly argued in his brief, such error may now be considered
by the court. These changes are of jurisprudential origin. CEDScA
2. The procedure in the Supreme Court being generally the

same as that in the Court of Appeals, unless otherwise indicated (see
Secs. 2 and 4, Rule 56), it has been held that the latter is clothed with
ample authority to review matters, even if they are not assigned as
errors on appeal, if it nds that their consideration is necessary in
arriving at a just decision of the case . Also, an unassigned error closely
related to an error properly assigned (PCIB vs. CA, et al., L-34931, Mar. 18, 1988),
or upon which the determination of the question raised by error properly assigned
is dependent, will be considered by the appellate court notwithstanding the failure
to assign it as error (Ortigas, Jr. vs. Lufthansa German Airlines, L-28773, June 30,
1975; Soco vs. Militante, et al., G.R. No. 58961, June 28, 1983).
It may also be observed that under Sec. 8 of this Rule, the appellate court is
authorized to consider a plain error, although it was not speci cally assigned by
the appellant (Dilag vs. Heirs of Resurreccion, 76 Phil. 649), otherwise it would be
sacrificing substance for technicalities. 3 3
In this case for damages based on quasi-delict, the trial court awarded
respondent the sum of P745,575.00, representing loss of earning capacity
(P590,000.00) and actual damages (P155,575.00 for funeral expenses), plus
P50,000.00 as moral damages. On appeal to the Court of Appeals, petitioner assigned
as error the award of damages by the trial court on the ground that it was based merely
on suppositions and surmises, not the admissions made by respondent during the trial.
In its Decision, the Court of Appeals sustained the award by the trial court for
loss of earning capacity of the deceased Silvino Tan, moral damages for his death, and
actual damages, although the amount of the latter award was modified.
The indemnity for loss of earning capacity of the deceased is provided for by
Article 2206 of the Civil Code. 3 4 Compensation of this nature is awarded not for loss
of earnings, but for loss of capacity to earn money. 3 5
As a rule, documentary evidence should be presented to substantiate the claim
for damages for loss of earning capacity. 3 6 By way of exception, damages for loss of
earning capacity may be awarded despite the absence of documentary evidence when:
(1) the deceased is self-employed and earning less than the minimum wage under
current labor laws, in which case, judicial notice may be taken of the fact that in the
deceased's line of work no documentary evidence is available; or (2) the deceased is
employed as a daily wage worker earning less than the minimum wage under current
labor laws. 3 7
In this case, the records show that respondent's husband was leasing and
operating a Caltex gasoline station in Gumaca, Quezon. Respondent testi ed that her
husband earned an annual income of one million pesos. Respondent presented in
evidence a Certi cate of Creditable Income Tax Withheld at Source for the Year 1990,
3 8 which showed that respondent's husband earned a gross income of P950,988.43 in
1990. It is reasonable to use the Certi cate and respondent's testimony as bases for
xing the gross annual income of the deceased at one million pesos before
respondent's husband died on March 17, 1999. However, no documentary evidence
was presented regarding the income derived from their copra business; hence, the
testimony of respondent as regards such income cannot be considered. HDTSIE
In the computation of loss of earning capacity, only net earnings, not gross
earnings, are to be considered; that is, the total of the earnings less expenses
necessary for the creation of such earnings or income, less living and other incidental
expenses. 3 9 In the absence of documentary evidence, it is reasonable to peg
necessary expenses for the lease and operation of the gasoline station at 80 percent of
the gross income, and peg living expenses at 50 percent of the net income (gross
income less necessary expenses). ECcTaH
In this case, the computation for loss of earning capacity is as follows:

Net Earning = Life Expectancy x Gross Annual Income - Reasonable and
Capacity [2/3 (80-age at the (GAI) Necessary
time of death) Expenses
(80% of GAI)
X = [2/3 (80-65) x P1,000,000.00 - P800,000.00

X = 2/3 (15) x P200,000.00 - P100,000.00
(Living Expenses)
X = 30/3 x P100,000.00
X = 10 x P100,000.00
X = P1,000,000.00
The Court of Appeals also awarded actual damages for the expenses incurred in
connection with the death, wake, and interment of respondent's husband in the amount
of P154,575.30, and the medical expenses of respondent in the amount of
P168,019.55.
Actual damages must be substantiated by documentary evidence, such as
receipts, in order to prove expenses incurred as a result of the death of the victim 4 0 or
the physical injuries sustained by the victim. A review of the valid receipts submitted in
evidence showed that the funeral and related expenses amounted only to P114,948.60,
while the medical expenses of respondent amounted only to P12,244.25, yielding a
total of P127,192.85 in actual damages.
Moreover, the Court of Appeals correctly sustained the award of moral damages
in the amount of P50,000.00 for the death of respondent's husband. Moral damages
are not intended to enrich a plaintiff at the expense of the defendant. 4 1 They are
awarded to allow the plaintiff to obtain means, diversions or amusements that will
serve to alleviate the moral suffering he/she has undergone due to the defendant's
culpable action and must, perforce, be proportional to the suffering inflicted. 4 2
In addition, the Court of Appeals correctly awarded temperate damages in the
amount of P10,000.00 for the damage caused on respondent's motorcycle. Under Art.
2224 of the Civil Code, temperate damages "may be recovered when the court nds
that some pecuniary loss has been suffered but its amount cannot, from the nature of
the case, be proved with certainty." The cost of the repair of the motorcycle was prayed
for by respondent in her Complaint. However, the evidence presented was merely a job
estimate 4 3 of the cost of the motorcycle's repair amounting to P17,829.00. The Court
of Appeals aptly held that there was no doubt that the damage caused on the
motorcycle was due to the negligence of petitioner's driver. In the absence of
competent proof of the actual damage caused on the motorcycle or the actual cost of
its repair, the award of temperate damages by the appellate court in the amount of
P10,000.00 was reasonable under the circumstances. 4 4
The Court of Appeals also correctly awarded respondent moral damages for the
physical injuries she sustained due to the vehicular accident. Under Art. 2219 of the Civil
Code, 4 5 moral damages may be recovered in quasi-delicts causing physical injuries.
However, the award of P50,000.00 should be reduced to P30,000.00 in accordance
with prevailing jurisprudence. 4 6 SCDaHc
Further, the Court of Appeals correctly awarded respondent civil indemnity for
the death of her husband, which has been xed by current jurisprudence at P50,000.00.
4 7 The award is proper under Art. 2206 of the Civil Code. 4 8
In ne, the Court of Appeals correctly awarded civil indemnity for the death of
respondent's husband, temperate damages, and moral damages for the physical
injuries sustained by respondent in addition to the damages granted by the trial court
to respondent. The trial court overlooked awarding the additional damages, which were
prayed for by respondent in her Amended Complaint. The appellate court is clothed
with ample authority to review matters, even if they are not assigned as errors in the
appeal, if it nds that their consideration is necessary in arriving at a just decision of the
case. 4 9
WHEREFORE , the petition is DENIED . The Decision of the Court of Appeals
dated August 17, 2004 in CA-G.R. CV No. 70860 is hereby AFFIRMED with
MODIFICATION . Petitioner Philippine Hawk Corporation and Margarito Avila are
hereby ordered to pay jointly and severally respondent Vivian Lee Tan: (a) civil indemnity
in the amount of Fifty Thousand Pesos (P50,000.00); (b) actual damages in the amount
of One Hundred Twenty-Seven Thousand One Hundred Ninety-Two Pesos and Eighty-
Five Centavos (P127,192.85); (c) moral damages in the amount of Eighty Thousand
Pesos (P80,000.00); (d) indemnity for loss of earning capacity in the amount of One
Million Pesos (P1,000,000.00); and (e) temperate damages in the amount of Ten
Thousand Pesos (P10,000.00).
SO ORDERED .
Corona, Velasco, Jr., Nachura and Mendoza, JJ., concur.
Footnotes
1. Under Rule 45 of the Rules of Court.

2. Records, p. 1.
3. Id. at 38.
4. Id. at 54.
5. Id. at 80.
6. Supra note 2, at 80.
7. Id.
8. TSN, April 26, 1994, pp. 6-7, 14 and 22; May 11, 1994, pp. 14-15.
9. Death Certificate, Exhibit "B," folder of exhibits, p. 3.
10. Annex "C," folder of exhibits, p. 11.

11. TSN, April 26, 1994, pp. 12-13.
12. TSN, March 16, 1995, pp. 4-6.
13. TSN, February 13, 1996, pp. 5-11, 18-19 and 23; September 10, 1996, pp. 7, 10, 12 and
14.
14. TSN, September 10, 1996, pp. 3-4.
15. TSN, October 22, 1996, p. 5.
16. TSN, January 14, 1997, pp. 5-18.

17. TSN, July 8, 1997, p. 5.
18. Record, p. 209.
20. Id.
21. Id.
22. Rollo, p. 32.
23. Id. at 8-9.
24. Viron Transportation Co., Inc. v. Delos Santos, G.R. No. 138296, November 22, 2000,
345 SCRA 509.
26. TSN, July 8, 1997, p. 27.
27. Achevara v. Ramos, G.R. No. 175172, September 29, 2009.
28. Id.
29. Macalinao v. Ong, G.R. No. 146635, December 14, 2005, 477 SCRA 740.
30. Id.
31. G.R. No. 134406, November 15, 2000, 344 SCRA 706.
32. Remedial Law Compendium, Vol. I, 582-583 (Sixth Revised Edition, 1997).
34. Civil Code, Art. 2206. . . .
(1) The defendant shall be liable for the loss of the earning capacity of the deceased,
and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every
case be assessed and awarded by the court, unless the deceased on account of
permanent physical disability not caused by the defendant, had no earning capacity at
the time of his death;
xxx xxx xxx
35. Heirs of George Y. Poe v. Malayan Insurance Co., Inc., G.R. No. 156302, April 7, 2009,
584 SCRA 178.
36. People v. Garchitorena, G.R. No. 175605, August 28, 2009.

37. Supra note 36.
38. Exhibit "J," folder of exhibits, p. 20.
39. Smith Bell Dodwell Shipping Agency Corporation v. Borja, G.R. No. 143008, June 10,
2002, 383 SCRA 341, 351.
40. People v. Ibañez, G.R. Nos. 133923-24, July 30, 2003, 407 SCRA 406.
41. Hernandez v. Dolor, G.R. No. 160286, July 30, 2004, 435 SCRA 668.
42. Id.
43. Exhibit "M," folder of exhibits, p. 47.
44. See Viron Transportation Co., Inc. v. Delos Santos, supra note 24.
45. Art. 2219. Moral damages may be recovered in the following and analogous cases:
xxx xxx xxx
(2) Quasi-delicts causing physical injuries;

xxx xxx xxx
46. Guillang v. Bedania, G.R. No. 162987, May 21, 2009, 588 SCRA 73.
47. Id., Philtranco Service Enterprises v. Court of Appeals, G.R. No. 120553, June 17, 1997,
273 SCRA 562.
48. Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be
at least three thousand pesos, even though there may have been mitigating
circumstances. . . .
49. Korean Airlines Co. Ltd. v. Court of Appeals, G.R. No. 114061, August 3, 1994, 234 SCRA
717.

THIRD DIVISION
[G.R. No. 188715. April 6, 2011.]
RODOLFO N. REGALA , petitioner, vs . FEDERICO P. CARIN , respondent.
DECISION
CARPIO MORALES , J : p
Assailed via this petition for review of petitioner Rodolfo N. Regala is the May 26,
2009 Decision 1 of the Court of Appeals which a rmed with modi cation the May 29,
2006 Decision 2 of the Regional Trial Court (RTC) of Las Piñas City, Br. 255 in Civil Case
No. LP-99-0058, ordering petitioner to pay respondent Federico P. Carin moral and
exemplary damages and attorney's fees. EICScD
Petitioner and respondent are adjacent neighbors at Spirig Street, BF Resort

Village, Las Piñas City. When petitioner decided to renovate his one storey residence by
constructing a second oor, he under the guise of merely building an extension to his
residence, approached respondent sometime in May 1998 for permission to bore a
hole through a perimeter wall shared by both their respective properties, to which
respondent verbally consented on condition that petitioner would clean the area
affected by the work.
As earlier indicated, petitioner's real intention was to build a second oor, in fact
with a terrace atop the dividing wall. In the course of the construction of the second
oor, respondent and his wife Marietta suffered from the dust and dirt which fell on
their property. As petitioner failed to address the problem to respondent's satisfaction,
respondent led a letter-complaint 3 with the O ce of the City Engineer and Building
Official of Las Piñas City on June 9, 1998.
In his letter-complaint, respondent related that, despite the lack of a building
permit for the construction of a second oor, petitioner had demolished the dividing
wall, failed to clean the debris falling therefrom, allowed his laborers to come in and out
of his (respondent's) property without permission by simply jumping over the wall, and
trampled on his vegetable garden; and that despite his protestations, petitioner
persisted in proceeding with the construction, he claiming to be the owner of the
perimeter wall.
Several "sumbongs" 4 (complaints) were soon lodged by respondent before the
O ce of Barangay Talon Dos against petitioner for encroachment, rampant invasion of
privacy and damages arising from the construction, and for illegal construction of
scaffoldings inside his (respondent's) property.
As no satisfactory agreement was reached at the last barangay conciliation
proceedings in December 1998, and petitioner having continued the construction work
despite issuance of several stop-work notices from the City Engineer's O ce for lack
of building permit, respondent led on March 1999 a complaint 5 for damages against
petitioner before the RTC of Las Piñas City.
In his complaint, respondent alleged in the main that, instead of boring just one
hole as agreed upon, petitioner demolished the whole length of the wall from top to
bottom into ve parts for the purpose of constructing a second oor with terrace; and
that debris and dust piled up on respondent's property ruining his garden and forcing
him to, among other things, shut some of the windows of his house. Respondent thus
prayed for the award of moral and exemplary damages. ASDTEa
Petitioner, denying respondent's allegations, claimed in his Answer 6 that he was

the sole and exclusive owner of the wall referred to as a perimeter wall, the same having
been built within the con nes of his property and being part and parcel of the house
and lot package he purchased from the developer, BF Homes, Inc., in 1981; that the
issue of its ownership has never been raised by respondent or his predecessor; and
that securing the consent of respondent and his neighbors was a mere formality in
compliance with the requirements of the Building O cial to facilitate the issuance of a
building permit, hence, it should not be taken to mean that he (petitioner)
acknowledges respondent to be a co-owner of the wall. He added that he eventually
secured the requisite building permit 7 in March 1999 and had duly paid the
administrative fine. 8
Further, petitioner, denying that a demolition of the whole length of the wall took
place, claimed that he and his contractor's laborers had been diligently cleaning
respondent's area after every day's work until respondent arrogantly demanded the
dismantling of the scaffoldings, and barred the workforce from, and threatening to
shoot anyone entering the premises; and that the complaint was instituted by
respondent as leverage to force him to withdraw the criminal case for slander and light
threats 9 which he had earlier led against respondent for uttering threats and
obscenities against him in connection with the construction work.
At the trial, after respondent and his wife con rmed the material allegations of
the complaint, petitioner took the witness stand and presented his witnesses.
Architect Antonio Punzalan III 1 0 testi ed that he installed GI sheets to prevent
debris from falling onto respondent's property and had instructed his workers to clean
the affected area after every work day at 5:00 p.m., but they were later barred by
respondent from entering his property.
Engineer Crisostomo Chan 1 1 from the O ce of the Building O cial of Las Piñas
City testi ed, among other things, on the circumstances surrounding the complaint for
illegal construction led by respondent and that a building permit was eventually issued
to petitioner on March 15, 1999.
Engineer Sonia Haduca 1 2 declared that upon a joint survey conducted on the
properties of both petitioner and respondent in December 1998 to determine their
exact boundaries, she found an encroachment by petitioner of six centimeters at the
lower portion of the existing wall negligible, since the Land Survey Law permits an
encroachment of up to ten centimeters.
By Decision of May 29, 2006, Branch 255 of the Las Piñas City RTC rendered
judgment in favor of respondent whom it awarded moral damages in the sum of
P100,000, exemplary damages of P100,000 and attorney's fees of P50,000 plus costs
of suit. 1 3 ETCcSa
In nding for respondent, the trial court declared that, apart from the fact that
petitioner knowingly commenced the renovation of his house without the requisite
building permit from the City Engineer's O ce, he misrepresented to respondent his
true intent of introducing renovations. For, it found that instead of just boring a hole in
the perimeter wall as originally proposed, petitioner divided the wall into several
sections to serve as a foundation for his rewall (which ended up higher than the
perimeter wall) and the second storey of his house.
The trial court further declared that respondent and his family had thus to
contend with the noise, dust and debris occasioned by the construction, which
petitioner and his work crew failed to address despite respondent's protestations, by
refusing to clean the mess or install the necessary safety devices.
Applying Article 2176 of the Civil Code on quasi-delicts, the trial court ruled that
petitioner was at fault and negligent for failing to undertake su cient safety measures
to prevent inconvenience and damage to respondent to thus entitle respondent to
moral and exemplary damages.
On appeal by petitioner, the Court of Appeals a rmed the trial court's decision
with modi cation by reducing the award of moral and exemplary damages to P50,000
and P25,000, respectively. The appellate court anchored its a rmance on Article 19 of
the New Civil Code which directs every person to, in the exercise of his rights and in the
performance of his duties, act with justice, and observe honesty and good faith.
By Resolution 1 4 of July 10, 2009, the appellate court denied petitioner's motion
for reconsideration as well as respondent's prayer in his Comment that the original
awards made by the trial court be restored.
Hence, petitioner's present petition faulting the appellate court in
A rming with modi cation the decision of the trial court. . . .considering
the absence of any competent proof to warrant the grant of moral and exemplary
damages as well as attorney's fees. 1 5 (underscoring supplied)
Petitioner maintains that since moral and exemplary damages are compensatory
in nature, being meant neither to punish nor enrich, the claimant must establish that not
only did he sustain injury but also that the other party had acted in bad faith or was
motivated by ill will. To petitioner, respondents failed to discharge this burden. He adds
that the trial court did not delve into whether petitioner's renovations were the primary
cause of respondent's claimed injuries, viz. violation of privacy, sleepless nights and
mental anguish, among other things, as it instead focused on the lack of a building
permit as basis for the awards.
Rebutting the testimony of respondent's wife as to the alleged unauthorized
intrusion of petitioner's workers into respondent's property in order to erect
scaffoldings, petitioner points out that such an undertaking would take a considerable
length of time and could not have gone unnoticed had consent not been given by
respondent. DaACIH
Moreover, petitioner posits, if consent had truly been withheld, there was nothing
to prevent respondent from dismantling or immediately removing the offending
structures — a course of action he did not even attempt.
In his Comment 1 6 to the petition, respondent quotes heavily from the appellate
and trial court's ndings that fault and negligence attended petitioner's renovation, thus
justifying the award of damages. He goes on to reiterate his plea that the awards given
by the trial court in its decision of May 29, 2006 should be reinstated.
The petition is partly impressed with merit.
The trial court's award of moral and exemplary damages, as a rmed by the
appellate court, was premised on the damage and suffering sustained by respondent
arising from quasi-delict under Article 2176 1 7 of the Civil Code. Thus the trial court
explained:
Indeed, there was fault or negligence on the part of the defendant when he
did not provide su cient safety measures to prevent causing a lot of
inconvenience and disturbance to the plaintiff and his family. The evidence
presented by the plaintiff regarding the dirt or debris, as well as the absence of
devices or safety measures to prevent the same from falling inside plaintiff's
property, were duly established. It did not help the cause of the defendant that he
made a lot of misrepresentations regarding the renovations on his house and he
did not initially have a building permit for the same. In fact, it was only after the
construction works were completed that the said permit was issued and upon
payment of an administrative fine by the defendant. 1 8
In prayers for moral damages, however, recovery is more an exception rather

than the rule. Moral damages are not meant to be punitive but are designed to
compensate and alleviate the physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar
harm unjustly caused to a person. To be entitled to such an award, the claimant must
satisfactorily prove that he has suffered damages and that the injury causing it has
sprung from any of the cases listed in Articles 2219 1 9 and 2220 2 0 of the Civil Code.
Moreover, the damages must be shown to be the proximate result of a wrongful act or
omission. The claimant must thus establish the factual basis of the damages and its
causal tie with the acts of the defendant.
In ne, an award of moral damages calls for the presentation of 1) evidence of
besmirched reputation or physical, mental or psychological suffering sustained by the
claimant; 2) a culpable act or omission factually established; 3) proof that the wrongful
act or omission of the defendant is the proximate cause of the damages sustained by
the claimant; and 4) the proof that the act is predicated on any of the instances
expressed or envisioned by Article 2219 and Article 2220 of the Civil Code. 2 1 HICEca
In the present case, respondent failed to establish by clear and convincing

evidence that the injuries he sustained were the proximate effect of petitioner's act or
omission. It thus becomes necessary to instead look into the manner by which
petitioner carried out his renovations to determine whether this was directly
responsible for any distress respondent may have suffered since the law requires that a
wrongful or illegal act or omission must have preceded the damages sustained by the
claimant.
It bears noting that petitioner was engaged in the lawful exercise of his property
rights to introduce renovations to his abode. While he initially did not have a building
permit and may have misrepresented his real intent when he initially sought
respondent's consent, the lack of the permit was inconsequential since it only rendered
petitioner liable to administrative sanctions or penalties.
The testimony of petitioner and his witnesses, speci cally Architect Punzalan,
demonstrates that they had actually taken measures to prevent, or at the very least,
minimize the damage to respondent's property occasioned by the construction work.
Architect Punzalan details how upon reaching an agreement with petitioner for the
construction of the second oor, he (Punzalan) surveyed petitioner's property based on
the Transfer Certi cate of Title (TCT) and Tax Declarations 2 2 and found that the
perimeter wall was within the con nes of petitioner's property; that he, together with
petitioner, secured the consent of the neighbors (including respondent) prior to the
start of the renovation as re ected in a Neighbor's Consent 2 3 dated June 12, 1998;
before the construction began, he undertook measures to prevent debris from falling
into respondent's property such as the installation of GI sheet strainers, the
construction of scaffoldings 2 4 on respondent's property, the instructions to his
workers to clean the area before leaving at 5:00 p.m; 2 5 and that the workers
conducted daily clean-up of respondent's property with his consent, until animosity
developed between the parties. 2 6
Malice or bad faith implies a conscious and intentional design to do a wrongful
act for a dishonest purpose or moral obliquity; it is different from the negative idea of
negligence in that malice or bad faith contemplates a state of mind a rmatively
operating with furtive design or ill will. 2 7 While the Court harbors no doubt that the
incidents which gave rise to this dispute have brought anxiety and anguish to
respondent, it is unconvinced that the damage in icted upon respondent's property
was malicious or willful, an element crucial to merit an award of moral damages under
Article 2220 of the Civil Code.
Necessarily, the Court is not inclined to award exemplary damages. 2 8
Petitioner, however, cannot steer clear from any liability whatsoever. Respondent
and his family's rights to the peaceful enjoyment of their property have, at the very least,
been inconvenienced from the incident borne of petitioner's construction work. Any
pecuniary loss or damage suffered by respondent cannot be established as the records
are bereft of any factual evidence to establish the same. Nominal damages may thus be
adjudicated in order that a right of the plaintiff, respondent herein, which has been
violated or invaded by the defendant, petitioner herein, may be vindicated or recognized,
and not for the purpose of indemnifying the plaintiff for any loss suffered by him. 2 9 caTIDE
WHEREFORE , the petition is GRANTED . The May 26, 2009 Decision of the Court
of Appeals is VACATED. The Court orders petitioner to pay respondent the sum of
P25,000 as nominal damages.
No costs.
SO ORDERED.
Brion, Bersamin, Villarama, Jr. and Sereno, JJ., concur.
Footnotes
1.Penned by Associate Justice Fernanda Lampas Peralta with the concurrence of Associate
Justices Andres B. Reyes, Jr. and Apolinario D. Bruselas, Jr., CA rollo, pp. 157-164.
2.Records, pp. 579-602.

3.Exhibit "B," records, pp. 281-282.
4.Id. at 9 and 284.

5.Docketed as Civil Case No. LP-99-0058, id. at 2-6.
6.Id. at 21-28.
7.Exhibit "21," id. at 427.
8.Vide Exhibit "22," id. at 428.
9.Criminal Case Nos. 43519-20 before the Metropolitan Trial Court of Las Piñas City, Br. 79.
10.TSN, August 4, 16, 2004.

11.TSN, September 27, 2004.
12.TSN, October 13, 2004.
13.Records, p. 602.
14.CA rollo, p. 187.
15.Rollo, p. 32.
16.Id. at 350-356.
17.Article 2176. Whoever by act or omission causes damage to another, there being fault or
preexisting contractual relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter.
18.Records, p. 600.
19.Article 2219. Moral damages may be recovered in the following and analogous cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape or other lascivious acts;

(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;

(9) Acts mentioned in article 309;
(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.
The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of
this article, may also recover moral damages.
The spouse, descendants, ascendants, and brothers and sisters may bring the action
mentioned in No. 9 of this article, in the order named.
20.Article 2220. Willful injury to property may be a legal ground for awarding moral damages if
the court should find that, under the circumstances, such damages are justly due. The
same rule applies to breaches of contract where the defendant acted fraudulently and in
bad faith.
21.B.F. Metal (Corporation) v. Lomoton, G.R. No. 170813, April 16, 2008, 551 SCRA 618, 628-
629 citing Philippine Telegraph & Telephone Corp. v. Court of Appeals, G.R. No. 139268,
September 3, 2002, 388 SCRA 270, 276.
22.Exhibit "11," records, p. 413.
23.Exhibit "7," id. at 288.
24.Exhibits "5" to "6," id. at 278.

25.TSN, August 4, 2004, pp. 18-34.
26.Id. at 35-38.
27.Far East Bank and Trust Company v. Court of Appeals, G.R. No. 108164, 241 SCRA 671, 675.
28.Philippine Telegraph & Telephone Corp. v. Court of Appeals, G.R. No. 139268, September 3,
2002, 388 SCRA 270, 277.
29.Id. at 279.

SECOND DIVISION
[G.R. No. 193577. September 7, 2011.]
ANTONIO FRANCISCO, substituted by his heirs: NELIA E.S.

FRANCISCO, EMILIA F. BERTIZ, REBECCA E.S. FRANCISCO,
ANTONIO E.S. FRANCISCO, JR., SOCORRO F. FONTANILLA, and
JOVITO E.S. FRANCISCO , petitioners, vs . CHEMICAL BULK CARRIERS,
INCORPORATED , respondent.
DECISION
CARPIO , J : p
The Case
This is a petition for review 1 of the 31 May 2010 Decision 2 and 31 August 2010
Resolution 3 of the Court of Appeals in CA G.R. CV No. 63591. In its 31 May 2010
Decision, the Court of Appeals set aside the 21 August 1998 Decision 4 of the Regional
Trial of Pasig City, Branch 71 (trial court), and ordered petitioner Antonio Francisco
(Francisco) to pay respondent Chemical Bulk Carriers, Incorporated (CBCI) P1,119,905
as actual damages. In its 31 August 2010 Resolution, the Court of Appeals denied
Francisco's motion for reconsideration. DHSCEc
The Facts
Since 1965, Francisco was the owner and manager of a Caltex station in Teresa,
Rizal. Sometime in March 1993, four persons, including Gregorio Bacsa (Bacsa), came
to Francisco's Caltex station and introduced themselves as employees of CBCI. Bacsa
offered to sell to Francisco a certain quantity of CBCI's diesel fuel.
After checking Bacsa's identi cation card, Francisco agreed to purchase CBCI's
diesel fuel. Francisco imposed the following conditions for the purchase: (1) that
Petron Corporation (Petron) should deliver the diesel fuel to Francisco at his business
address which should be properly indicated in Petron's invoice; (2) that the delivery
tank is sealed; and (3) that Bacsa should issue a separate receipt to Francisco.
The deliveries started on 5 April 1993 and lasted for ten months, or up to 25
January 1994. 5 There were 17 deliveries to Francisco and all his conditions were
complied with.
In February 1996, CBCI sent a demand letter to Francisco regarding the diesel
fuel delivered to him but which had been paid for by CBCI. 6 CBCI demanded that
Francisco pay CBCI P1,053,527 for the diesel fuel or CBCI would le a complaint
against him in court. Francisco rejected CBCI's demand.
On 16 April 1996, CBCI led a complaint for sum of money and damages against
Francisco and other unnamed defendants. 7 According to CBCI, Petron, on various
dates, sold diesel fuel to CBCI but these were delivered to and received by Francisco.
Francisco then sold the diesel fuel to third persons from whom he received payment.
CBCI alleged that Francisco acquired possession of the diesel fuel without authority
from CBCI and deprived CBCI of the use of the diesel fuel it had paid for. CBCI
demanded payment from Francisco but he refused to pay. CBCI argued that Francisco
should have known that since only Petron, Shell and Caltex are authorized to sell and
distribute petroleum products in the Philippines, the diesel fuel came from illegitimate,
if not illegal or criminal, acts. CBCI asserted that Francisco violated Articles 19, 8 20, 9
21, 1 0 and 22 1 1 of the Civil Code and that he should be held liable. In the alternative,
CBCI claimed that Francisco, in receiving CBCI's diesel fuel, entered into an innominate
contract of do ut des (I give and you give) with CBCI for which Francisco is obligated to
pay CBCI P1,119,905, the value of the diesel fuel. CBCI also prayed for exemplary
damages, attorney's fees and other expenses of litigation.
On 20 May 1996, Francisco led a Motion to Dismiss on the ground of forum
shopping. 1 2 CBCI filed its Opposition. 1 3 In an Order dated 15 November 1996, the trial
court denied Francisco's motion. 1 4
Thereafter, Francisco led his Answer. 1 5 Francisco explained that he operates
the Caltex station with the help of his family because, in February 1978, he completely
lost his eyesight due to sickness. Francisco claimed that he asked Jovito, his son, to
look into and verify the identity of Bacsa, who introduced himself as a radio operator
and con dential secretary of a certain Mr. Inawat (Inawat), CBCI's manager for
operations. Francisco said he was satis ed with the proof presented by Bacsa. When
asked to explain why CBCI was selling its fuel, Bacsa allegedly replied that CBCI was in
immediate need of cash for the salary of its daily paid workers and for petty cash.
Francisco maintained that Bacsa assured him that the diesel fuel was not stolen
property and that CBCI enjoyed a big credit line with Petron. Francisco agreed to
purchase the diesel fuel offered by Bacsa on the following conditions:
1) Defendant [Francisco] will not accept any delivery if it is not
company (Petron) delivered, with his name and address as shipping point
properly printed and indicated in the invoice of Petron, and that the product on the
delivery tank is sealed; [and]
2) Although the original invoice is su cient evidence of delivery and

payment, under ordinary course of business, defendant still required Mr. Bacsa to
issue a separate receipt duly signed by him acknowledging receipt of the amount
stated in the invoice, for and in behalf of CBCI. 1 6
During the rst delivery on 5 April 1993, Francisco asked one of his sons to verify
whether the delivery truck's tank was properly sealed and whether Petron issued the
invoice. Francisco said all his conditions were complied with. There were 17 deliveries
made from 5 April 1993 to 25 January 1994 and each delivery was for 10,000 liters of
diesel fuel at P65,865. 1 7 Francisco maintained that he acquired the diesel fuel in good
faith and for value. Francisco also led a counterclaim for exemplary damages, moral
damages and attorney's fees. aCITEH
In its 21 August 1998 Decision, the trial court ruled in Francisco's favor and
dismissed CBCI's complaint. The dispositive portion of the trial court's 21 August 1998
Decision reads:
WHEREFORE, Judgment is hereby rendered:
1. Dismissing the complaint dated March 13, 1996 with costs.
2. Ordering plaintiff (CBCI), on the counterclaim, to pay defendant the

amount of P100,000.00 as moral damages and P50,000.00 as and
by way of attorney's fees.
SO ORDERED. 1 8
CBCI appealed to the Court of Appeals. 1 9 CBCI argued that Francisco acquired
the diesel fuel from Petron without legal ground because Bacsa was not authorized to
deliver and sell CBCI's diesel fuel. CBCI added that Francisco acted in bad faith because
he should have inquired further whether Bacsa's sale of CBCI's diesel fuel was
legitimate.
In its 31 May 2010 Decision, the Court of Appeals set aside the trial court's 21
August 1998 Decision and ruled in CBCI's favor. The dispositive portion of the Court of
Appeals' 31 May 2010 Decision reads:
IN VIEW OF THE FOREGOING, the assailed decision is hereby REVERSED
and SET ASIDE. Antonio Francisco is ordered to pay Chemical Bulk Carriers,
Incorporated the amount of P1,119,905.00 as actual damages.
SO ORDERED. 2 0
On 15 January 2001, Francisco died. 2 1 Francisco's heirs, namely: Nelia E.S.

Francisco, Emilia F. Bertiz, Rebecca E.S. Francisco, Antonio E.S. Francisco, Jr., Socorro
F. Fontanilla, and Jovito E.S. Francisco (heirs of Francisco) led a motion for
substitution. 2 2 The heirs of Francisco also led a motion for reconsideration. 2 3 In its
31 August 2010 Resolution, the Court of Appeals granted the motion for substitution
but denied the motion for reconsideration.
Hence, this petition.
The Ruling of the Trial Court
The trial court ruled that Francisco was not liable for damages in favor of CBCI
because the 17 deliveries were covered by original and genuine invoices. The trial court
declared that Bacsa, as con dential secretary of Inawat, was CBCI's authorized
representative who received Francisco's full payment for the diesel fuel. The trial court
stated that if Bacsa was not authorized, CBCI should have sued Bacsa and not
Francisco. The trial court also considered Francisco a buyer in good faith who paid in
full for the merchandise without notice that some other person had a right to or interest
in such diesel fuel. The trial court pointed out that good faith affords protection to a
purchaser for value. Finally, since CBCI was bound by the acts of Bacsa, the trial court
ruled that CBCI is liable to pay damages to Francisco.
The Ruling of the Court of Appeals
The Court of Appeals set aside the trial court's 21 August 1998 Decision and
ruled that Bacsa's act of selling the diesel fuel to Francisco was his personal act and,
even if Bacsa connived with Inawat, the sale does not bind CBCI.
The Court of Appeals declared that since Francisco had been in the business of
selling petroleum products for a considerable number of years, his blindness was not a
hindrance for him to transact business with other people. With his condition and
experience, Francisco should have veri ed whether CBCI was indeed selling diesel fuel
and if it had given Bacsa authority to do so. Moreover, the Court of Appeals stated that
Francisco cannot feign good faith since he had doubts as to the authority of Bacsa yet
he did not seek con rmation from CBCI and contented himself with an improvised
receipt. Francisco's failure to verify Bacsa's authority showed that he had an ulterior
motive. The receipts issued by Bacsa also showed his lack of authority because it was
on a plain sheet of bond paper with no letterhead or any indication that it came from
CBCI. The Court of Appeals ruled that Francisco cannot invoke estoppel because he
was at fault for choosing to ignore the tell-tale signs of petroleum diversion and for not
exercising prudence. CTIDcA
The Court of Appeals also ruled that CBCI was unlawfully deprived of the diesel
fuel which, as indicated in the invoices, CBCI had already paid for. Therefore, CBCI had
the right to recover the diesel fuel or its value from Francisco. Since the diesel fuel can
no longer be returned, the Court of Appeals ordered Francisco to give back the actual
amount paid by CBCI for the diesel fuel.
The Issues
The heirs of Francisco raise the following issues:

I. WHETHER THE COURT OF APPEALS ERRED IN NOT FINDING THAT
DEFENDANT ANTONIO FRANCISCO EXERCISED THE REQUIRED
DILIGENCE OF A BLIND PERSON IN THE CONDUCT OF HIS BUSINESS; and
II. WHETHER ON THE BASIS OF THE FACTUAL FINDINGS OF THE COURT OF

APPEALS AND THE TRIAL COURT AND ADMITTED FACTS, IT CAN BE
CONCLUDED THAT THE PLAINTIFF APPROVED EXPRESSLY OR TACITLY
THE TRANSACTIONS. 2 4
The Ruling of the Court

The petition has no merit.
Required Diligence of a Blind Person
The heirs of Francisco argue that the Court of Appeals erred when it ruled that
Francisco was liable to CBCI because he failed to exercise the diligence of a good
father of a family when he bought the diesel fuel. They argue that since Francisco was
blind, the standard of conduct that was required of him was that of a reasonable
person under like disability. Moreover, they insist that Francisco exercised due care in
purchasing the diesel fuel by doing the following: (1) Francisco asked his son to check
the identity of Bacsa; (2) Francisco required direct delivery from Petron; (3) Francisco
required that he be named as the consignee in the invoice; and (4) Francisco required
separate receipts from Bacsa to evidence actual payment.
Standard of conduct is the level of expected conduct that is required by the
nature of the obligation and corresponding to the circumstances of the person, time
and place. 2 5 The most common standard of conduct is that of a good father of a
family or that of a reasonably prudent person. 2 6 To determine the diligence which must
be required of all persons, we use as basis the abstract average standard
corresponding to a normal orderly person. 2 7
However, one who is physically disabled is required to use the same degree of
care that a reasonably careful person who has the same physical disability would use.
2 8 Physical handicaps and infirmities, such as blindness or deafness, are treated as part
of the circumstances under which a reasonable person must act. Thus, the standard of
conduct for a blind person becomes that of a reasonable person who is blind.
We note that Francisco, despite being blind, had been managing and operating
the Caltex station for 15 years and this was not a hindrance for him to transact
business until this time. In this instance, however, we rule that Francisco failed to
exercise the standard of conduct expected of a reasonable person who is blind. First,
Francisco merely relied on the identi cation card of Bacsa to determine if he was
authorized by CBCI. Francisco did not do any other background check on the identity
and authority of Bacsa. Second, Francisco already expressed his misgivings about the
diesel fuel, fearing that they might be stolen property, 2 9 yet he did not verify with CBCI
the authority of Bacsa to sell the diesel fuel. Third, Francisco relied on the receipts
issued by Bacsa which were typewritten on a half sheet of plain bond paper. 3 0 If
Francisco exercised reasonable diligence, he should have asked for an o cial receipt
issued by CBCI. Fourth, the delivery to Francisco, as indicated in Petron's invoice, does
not show that CBCI authorized Bacsa to sell the diesel fuel to Francisco. Clearly,
Francisco failed to exercise the standard of conduct expected of a reasonable person
who is blind.
Express or Tacit Approval of the Transaction
The heirs of Francisco argue that CBCI approved expressly or tacitly the
transactions. According to them, there was apparent authority for Bacsa to enter into
the transactions. They argue that even if the agent has exceeded his authority, the
principal is solidarily liable with the agent if the former allowed the later to act as
though he had full powers. 3 1 They insist CBCI was not unlawfully deprived of its
property because Inawat gave Bacsa the authority to sell the diesel fuel and that CBCI
is bound by such action. Lastly, they argue that CBCI should be considered in estoppel
for failure to act during the ten month period that deliveries were being made to
Francisco. ACDIcS
The general principle is that a seller without title cannot transfer a better title
than he has. 3 2 Only the owner of the goods or one authorized by the owner to sell can
transfer title to the buyer. 3 3 Therefore, a person can sell only what he owns or is
authorized to sell and the buyer can, as a consequence, acquire no more than what the
seller can legally transfer. 3 4
Moreover, the owner of the goods who has been unlawfully deprived of it may
recover it even from a purchaser in good faith. 3 5 Thus, the purchaser of property which
has been stolen from the owner has been held to acquire no title to it even though he
purchased for value and in good faith.
The exception from the general principle is the doctrine of estoppel where the
owner of the goods is precluded from denying the seller's authority to sell. 3 6 But in
order that there may be estoppel, the owner must, by word or conduct, have caused or
allowed it to appear that title or authority to sell is with the seller and the buyer must
have been misled to his damage. 3 7
In this case, it is clear that Bacsa was not the owner of the diesel fuel. Francisco
was aware of this but he claimed that Bacsa was authorized by CBCI to sell the diesel
fuel. However, Francisco's claim that Bacsa was authorized is not supported by any
evidence except his self-serving testimony. First, Francisco did not even con rm with
CBCI if it was indeed selling its diesel fuel since it is not one of the oil companies
known in the market to be selling petroleum products. This fact alone should have put
Francisco on guard. Second, it does not appear that CBCI, by some direct and equivocal
act, has clothed Bacsa with the indicia of ownership or apparent authority to sell CBCI's
diesel fuel. Francisco did not state if the identi cation card presented by Bacsa
indicated that he was CBCI's agent or a mere employee. Third, the receipt issued by
Bacsa was typewritten on a half sheet of plain bond paper. There was no letterhead or
any indication that it came from CBCI. We agree with the Court of Appeals that this was
a personal receipt issued by Bacsa and not an o cial receipt issued by CBCI.
Consequently, CBCI is not precluded by its conduct from denying Bacsa's authority to
sell. CBCI did not hold out Bacsa or allow Bacsa to appear as the owner or one with
apparent authority to dispose of the diesel fuel.
Clearly, Bacsa cannot transfer title to Francisco as Bacsa was not the owner of
the diesel fuel nor was he authorized by CBCI to sell its diesel fuel. CBCI did not commit
any act to clothe Bacsa with apparent authority to sell the diesel fuel that would have
misled Francisco. Francisco, therefore, did not acquire any title over the diesel fuel.
Since CBCI was unlawfully deprived of its property, it may recover from Francisco, even
if Francisco pleads good faith.
WHEREFORE , we DENY the petition. We AFFIRM the 31 May 2010 Decision and
31 August 2010 Resolution of the Court of Appeals.
SO ORDERED .
Brion, Peralta, * Perez and Mendoza, ** JJ., concur.
Footnotes
*Designated Acting Member per Special Order No. 1074 dated 6 September 2011.
**Designated Acting Member per Special Order No. 1066 dated 23 August 2011.
1.Under Rule 45 of the Rules of Court.
2.Rollo, pp. 7-27. Penned by Presiding Judge Andres B. Reyes, Jr., with Associate Justices
Isaias P. Dicdican and Stephen C. Cruz, concurring.
3.Id. at 28-30.
4.Id. at 150-157. Penned by Judge Celso D. Laviña.
5.Annexes "1" to "17," Records, pp. 11-27.

6.Id. at 196.
7.Rollo, pp. 77-85.
8.ART. 19. Every person must, in the exercise of his rights and in the performance of his duties,
act with justice, give everyone his due, and observe honesty and good faith.
9.ART. 20. Every person who, contrary to law, willfully or negligently causes damage to another,
shall indemnify the latter for the same.
10.ART. 21. Any person who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
11.ART. 22. Every person who through an act of performance by another, or any other means,
acquires or comes into possession of something at the expense of the latter without just
or legal ground, shall return the same to him.
12.Rollo, pp. 86-93.
13.Id. at 94-98.

14.Id. at 99.
15.Records, pp. 97-113.

16.Id. at 99-100.
17.The first delivery on 5 April 1993 was for 10,000 liters at P66,065; Annex "1," id. at 11.
18.Rollo, p. 157.
19.CA rollo, pp. 12-43.
20.Rollo, p. 27.
21.CA rollo, p. 150.
22.Id. at 120-124.
23.Id. at 126-136.
24.Rollo, p. 39.
25.CIVIL CODE, Art. 1173.
27.Arturo M. Tolentino, CIVIL CODE OF THE PHILIPPINES, Vol. 4 125 (1991).
28.Timoteo B. Aquino, TORTS AND DAMAGES 92 (2001).
29.Records, pp. 98-99.

30.Exhibits "7" to "7-N," id. at 61-77.
33.Id.
34.Nool v. Court of Appeals, 342 Phil. 106 (1997); Segura v. Segura, 247-A Phil. 449 (1988).
37.Id.

SECOND DIVISION
[G.R. No. 151258. February 1, 2012.]
ARTEMIO VILLAREAL , petitioner, vs . PEOPLE OF THE PHILIPPINES ,

respondent.
[G.R. No. 154954. February 1, 2012.]
PEOPLE OF THE PHILIPPINES , petitioner, vs . THE HONORABLE

COURT OF APPEALS, ANTONIO MARIANO ALMEDA, DALMACIO LIM,
JR., JUNEL ANTHONY AMA, ERNESTO JOSE MONTECILLO, VINCENT
TECSON, ANTONIO GENERAL, SANTIAGO RANADA III, NELSON
VICTORINO, JAIME MARIA FLORES II, ZOSIMO MENDOZA, MICHAEL
MUSNGI, VICENTE VERDADERO, ETIENNE GUERRERO, JUDE
FERNANDEZ, AMANTE PURISIMA II, EULOGIO SABBAN, PERCIVAL
BRIGOLA, PAUL ANGELO SANTOS, JONAS KARL B. PEREZ, RENATO
BANTUG, JR., ADEL ABAS, JOSEPH LLEDO, AND RONAN DE
GUZMAN , respondents.
[G.R. No. 155101. February 1, 2012.]
FIDELITO DIZON , petitioner, vs . PEOPLE OF THE PHILIPPINES ,

respondent.
[G.R. Nos. 178057 & 178080. February 1, 2012.]
GERARDA H. VILLA , petitioner, vs . MANUEL LORENZO ESCALONA II,

MARCUS JOEL CAPELLAN RAMOS, CRISANTO CRUZ SARUCA, JR.,
AND ANSELMO ADRIANO , respondents.
DECISION
SERENO , J : p
The public outrage over the death of Leonardo "Lenny" Villa — the victim in this
case — on 10 February 1991 led to a very strong clamor to put an end to hazing. 1 Due
in large part to the brave efforts of his mother, petitioner Gerarda Villa, groups were
organized, condemning his senseless and tragic death. This widespread condemnation
prompted Congress to enact a special law, which became effective in 1995, that would
criminalize hazing. 2 The intent of the law was to discourage members from making
hazing a requirement for joining their sorority, fraternity, organization, or association. 3
Moreover, the law was meant to counteract the exculpatory implications of "consent"
and "initial innocent act" in the conduct of initiation rites by making the mere act of
hazing punishable or mala prohibita. 4
Sadly, the Lenny Villa tragedy did not discourage hazing activities in the country. 5
Within a year of his death, six more cases of hazing-related deaths emerged — those of
Frederick Cahiyang of the University of Visayas in Cebu; Raul Camaligan of San Beda
College; Felipe Narne of Pamantasan ng Araullo in Cabanatuan City; Dennis Cenedoza of
the Cavite Naval Training Center; Joselito Mangga of the Philippine Merchant Marine
Institute; and Joselito Hernandez of the University of the Philippines in Baguio City. 6
Although courts must not remain indifferent to public sentiments, in this case the
general condemnation of a hazing-related death, they are still bound to observe a
fundamental principle in our criminal justice system — "[N]o act constitutes a crime…
unless it is made so by law." 7 Nullum crimen, nulla poena sine lege. Even if an act is
viewed by a large section of the populace as immoral or injurious, it cannot be
considered a crime, absent any law prohibiting its commission. As interpreters of the
law, judges are called upon to set aside emotion, to resist being swayed by strong
public sentiments, and to rule strictly based on the elements of the offense and the
facts allowed in evidence.
Before the Court are the consolidated cases docketed as G.R. No. 151258
(Villareal v. People) , G.R. No. 154954 (People v. Court of Appeals) , G.R. No. 155101
(Dizon v. People), and G.R. Nos. 178057 and 178080 (Villa v. Escalona).
FACTS
The pertinent facts, as determined by the Court of Appeals (CA) 8 and the trial
court, are as follows:
9
In February 1991, seven freshmen law students of the Ateneo de Manila

University School of Law signi ed their intention to join the Aquila Legis Juris Fraternity
(Aquila Fraternity). They were Caesar "Bogs" Asuncion, Samuel "Sam" Belleza,
Bienvenido "Bien" Marquez III, Roberto Francis "Bert" Navera, Geronimo "Randy" Recinto,
Felix Sy, Jr., and Leonardo "Lenny" Villa (neophytes).
On the night of 8 February 1991, the neophytes were met by some members of
the Aquila Fraternity (Aquilans) at the lobby of the Ateneo Law School. They all
proceeded to Rufo's Restaurant to have dinner. Afterwards, they went to the house of
Michael Musngi, also an Aquilan, who briefed the neophytes on what to expect during
the initiation rites. The latter were informed that there would be physical beatings, and
that they could quit at any time. Their initiation rites were scheduled to last for three
days. After their "brie ng," they were brought to the Almeda Compound in Caloocan City
for the commencement of their initiation.
Even before the neophytes got off the van, they had already received threats and
insults from the Aquilans. As soon as the neophytes alighted from the van and walked
towards the pelota court of the Almeda compound, some of the Aquilans delivered
physical blows to them. The neophytes were then subjected to traditional forms of
Aquilan "initiation rites." These rites included the "Indian Run," which required the
neophytes to run a gauntlet of two parallel rows of Aquilans, each row delivering blows
to the neophytes; the "Bicol Express," which obliged the neophytes to sit on the oor
with their backs against the wall and their legs outstretched while the Aquilans walked,
jumped, or ran over their legs; the "Rounds," in which the neophytes were held at the
back of their pants by the "auxiliaries" (the Aquilans charged with the duty of lending
assistance to neophytes during initiation rites), while the latter were being hit with st
blows on their arms or with knee blows on their thighs by two Aquilans; and the "Auxies'
Privilege Round," in which the auxiliaries were given the opportunity to in ict physical
pain on the neophytes. During this time, the neophytes were also indoctrinated with the
fraternity principles. They survived their first day of initiation.
On the morning of their second day — 9 February 1991 — the neophytes were
made to present comic plays and to play rough basketball. They were also required to
memorize and recite the Aquila Fraternity's principles. Whenever they would give a
wrong answer, they would be hit on their arms or legs. Late in the afternoon, the
Aquilans revived the initiation rites proper and proceeded to torment them physically
and psychologically. The neophytes were subjected to the same manner of hazing that
they endured on the rst day of initiation. After a few hours, the initiation for the day
officially ended.
After a while, accused non-resident or alumni fraternity members 1 0 Fidelito
Dizon (Dizon) and Artemio Villareal (Villareal) demanded that the rites be reopened. The
head of initiation rites, Nelson Victorino (Victorino), initially refused. Upon the insistence
of Dizon and Villareal, however, he reopened the initiation rites. The fraternity members,
including Dizon and Villareal, then subjected the neophytes to "paddling" and to
additional rounds of physical pain. Lenny received several paddle blows, one of which
was so strong it sent him sprawling to the ground. The neophytes heard him
complaining of intense pain and di culty in breathing. After their last session of
physical beatings, Lenny could no longer walk. He had to be carried by the auxiliaries to
the carport. Again, the initiation for the day was o cially ended, and the neophytes
started eating dinner. They then slept at the carport.
After an hour of sleep, the neophytes were suddenly roused by Lenny's shivering
and incoherent mumblings. Initially, Villareal and Dizon dismissed these rumblings, as
they thought he was just overacting. When they realized, though, that Lenny was really
feeling cold, some of the Aquilans started helping him. They removed his clothes and
helped him through a sleeping bag to keep him warm. When his condition worsened,
the Aquilans rushed him to the hospital. Lenny was pronounced dead on arrival.
Consequently, a criminal case for homicide was led against the following 35
Aquilans:
In Criminal Case No. C-38340(91)
1. Fidelito Dizon (Dizon)
2. Artemio Villareal (Villareal)

3. Efren de Leon (De Leon)
4. Vincent Tecson (Tecson)

5. Junel Anthony Ama (Ama)
6. Antonio Mariano Almeda (Almeda)
7. Renato Bantug, Jr. (Bantug)

8. Nelson Victorino (Victorino)
9. Eulogio Sabban (Sabban)

10. Joseph Lledo (Lledo)
11. Etienne Guerrero (Guerrero)

12. Michael Musngi (Musngi)
13. Jonas Karl Perez (Perez)
14. Paul Angelo Santos (Santos)
15. Ronan de Guzman (De Guzman)
16. Antonio General (General) ICTHDE
17. Jaime Maria Flores II (Flores)
18. Dalmacio Lim, Jr. (Lim)

19. Ernesto Jose Montecillo (Montecillo)
20. Santiago Ranada III (Ranada)

21. Zosimo Mendoza (Mendoza)
22. Vicente Verdadero (Verdadero)
23. Amante Purisima II (Purisima)

24. Jude Fernandez (J. Fernandez)
25. Adel Abas (Abas)

26. Percival Brigola (Brigola)
In Criminal Case No. C-38340

1. Manuel Escalona II (Escalona)
2. Crisanto Saruca, Jr. (Saruca)
3. Anselmo Adriano (Adriano)

4. Marcus Joel Ramos (Ramos)
5. Reynaldo Concepcion (Concepcion)

6. Florentino Ampil (Ampil)
7. Enrico de Vera III (De Vera)

8. Stanley Fernandez (S. Fernandez)
9. Noel Cabangon (Cabangon)
Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91) were

jointly tried. 1 1 On the other hand, the trial against the remaining nine accused in
Criminal Case No. C-38340 was held in abeyance due to certain matters that had to be
resolved first. 1 2
On 8 November 1993, the trial court rendered judgment in Criminal Case No. C-
38340(91), holding the 26 accused guilty beyond reasonable doubt of the crime of
homicide , penalized with reclusion temporal under Article 249 of the Revised Penal
Code. 1 3 A few weeks after the trial court rendered its judgment, or on 29 November
1993, Criminal Case No. C-38340 against the remaining nine accused commenced
anew. 1 4
On 10 January 2002, the CA in (CA-G.R. No. 15520) 1 5 set aside the nding of
conspiracy by the trial court in Criminal Case No. C-38340(91) and modi ed the
criminal liability of each of the accused according to individual participation .
Accused De Leon had by then passed away, so the following Decision applied only to
the remaining 25 accused, viz.:
1. Nineteen of the accused-appellants — Victorino, Sabban, Lledo,
Guerrero, Musngi, Perez, De Guzman, Santos, General, Flores, Lim,
Montecillo, Ranada, Mendoza, Verdadero, Purisima, Fernandez, Abas,
and Brigola (Vict orino et al. ) — were acquitted , as their individual
guilt was not established by proof beyond reasonable doubt.
2. Four of the accused-appellants — Vincent Tecson, Junel Anthony
Ama, Antonio Mariano Almeda, and Renato Bantug, Jr. (Te c s o n et
al. ) — were found guilty of the crime of slight physical injuries and
sentenced to 20 days of arresto menor. They were also ordered to
jointly pay the heirs of the victim the sum of P30,000 as indemnity.
3. Two of the accused-appellants — Fidelito Dizon and Artemio
Villareal — were found guilty beyond reasonable doubt of the crime
o f homicide under Article 249 of the Revised Penal Code. Having
found no mitigating or aggravating circumstance, the CA sentenced
them to an indeterminate sentence of 10 years of prision mayor to 17
years of reclusion temporal. They were also ordered to indemnify,
jointly and severally, the heirs of Lenny Villa in the sum of P50,000 and
to pay the additional amount of P1,000,000 by way of moral
damages. CDaSAE
On 5 August 2002, the trial court in Criminal Case No. 38340 dismissed the
charge against accused Concepcion on the ground of violation of his right to speedy
trial. 1 6 Meanwhile, on different dates between the years 2003 and 2005, the trial court
denied the respective Motions to Dismiss of accused Escalona, Ramos, Saruca, and
Adriano. 1 7 On 25 October 2006, the CA in CA-G.R. SP Nos. 89060 & 90153 1 8 reversed
the trial court's Orders and dismissed the criminal case against Escalona, Ramos,
Saruca, and Adriano on the basis of violation of their right to speedy trial. 1 9
From the aforementioned Decisions, the ve (5) consolidated Petitions were
individually brought before this Court.
G.R. No. 151258 — Villareal v. People
The instant case refers to accused Villareal's Petition for Review on Certiorari
under Rule 45. The Petition raises two reversible errors allegedly committed by the CA
in its Decision dated 10 January 2002 in CA-G.R. No. 15520 — rst, denial of due
process; and, second, conviction absent proof beyond reasonable doubt. 2 0
While the Petition was pending before this Court, counsel for petitioner Villareal
led a Notice of Death of Party on 10 August 2011. According to the Notice, petitioner
Villareal died on 13 March 2011. Counsel thus asserts that the subject matter of the
Petition previously filed by petitioner does not survive the death of the accused.
G.R. No. 155101 — Dizon v. People
Accused Dizon led a Rule 45 Petition for Review on Certiorari, questioning the
CA's Decision dated 10 January 2002 and Resolution dated 30 August 2002 in CA-G.R.
No. 15520. 2 1 Petitioner sets forth two main issues — rst, that he was denied due
process when the CA sustained the trial court's forfeiture of his right to present
evidence; and, second, that he was deprived of due process when the CA did not apply
to him the same "ratio decidendi that served as basis of acquittal of the other accused."
22
As regards the rst issue, the trial court made a ruling, which forfeited Dizon's
right to present evidence during trial. The trial court expected Dizon to present evidence
on an earlier date since a co-accused, Antonio General, no longer presented separate
evidence during trial. According to Dizon, his right should not have been considered as
waived because he was justi ed in asking for a postponement. He argues that he did
not ask for a resetting of any of the hearing dates and in fact insisted that he was ready
to present evidence on the original pre-assigned schedule, and not on an earlier hearing
date.
Regarding the second issue, petitioner contends that he should have likewise
been acquitted, like the other accused, since his acts were also part of the traditional
initiation rites and were not tainted by evil motives. 2 3 He claims that the additional
paddling session was part of the o cial activity of the fraternity. He also points out
that one of the neophytes admitted that the chairperson of the initiation rites "decided
that [Lenny] was t enough to undergo the initiation so Mr. Villareal proceeded to do
the paddling. . . ." 2 4 Further, petitioner echoes the argument of the Solicitor General that
"the individual blows in icted by Dizon and Villareal could not have resulted in Lenny's
death." 2 5 The Solicitor General purportedly averred that, "on the contrary, Dr. Arizala
testi ed that the injuries suffered by Lenny could not be considered fatal if taken
individually, but if taken collectively, the result is the violent death of the victim." 2 6
Petitioner then counters the nding of the CA that he was motivated by ill will. He
claims that Lenny's father could not have stolen the parking space of Dizon's father,
since the latter did not have a car, and their fathers did not work in the same place or
o ce. Revenge for the loss of the parking space was the alleged ill motive of Dizon.
According to petitioner, his utterances regarding a stolen parking space were only part
of the "psychological initiation." He then cites the testimony of Lenny's co-neophyte —
witness Marquez — who admitted knowing "it was not true and that he was just making
it up. . . ." 2 7
Further, petitioner argues that his alleged motivation of ill will was negated by his
show of concern for Villa after the initiation rites. Dizon alludes to the testimony of one
of the neophytes, who mentioned that the former had kicked the leg of the neophyte
and told him to switch places with Lenny to prevent the latter's chills. When the chills
did not stop, Dizon, together with Victorino, helped Lenny through a sleeping bag and
made him sit on a chair. According to petitioner, his alleged ill motivation is
contradicted by his manifestation of compassion and concern for the victim's well-
being.
G.R. No. 154954 — People v. Court of Appeals
This Petition for Certiorari under Rule 65 seeks the reversal of the CA's Decision
dated 10 January 2002 and Resolution dated 30 August 2002 in CA-G.R. No. 15520,
insofar as it acquitted 19 (Victorino et al.) and convicted 4 (Tecson et al.) of the
accused Aquilans of the lesser crime of slight physical injuries. 2 8 According to the
Solicitor General, the CA erred in holding that there could have been no conspiracy to
commit hazing, as hazing or fraternity initiation had not yet been criminalized at the
time Lenny died.
In the alternative, petitioner claims that the ruling of the trial court should have
been upheld, inasmuch as it found that there was conspiracy to in ict physical injuries
on Lenny. Since the injuries led to the victim's death, petitioner posits that the accused
Aquilans are criminally liable for the resulting crime of homicide, pursuant to Article 4 of
the Revised Penal Code. 2 9 The said article provides: "Criminal liability shall be incurred.
. . [b]y any person committing a felony (delito) although the wrongful act done be
different from that which he intended."
Petitioner also argues that the rule on double jeopardy is inapplicable. According
to the Solicitor General, the CA acted with grave abuse of discretion, amounting to lack
or excess of jurisdiction, in setting aside the trial court's nding of conspiracy and in
ruling that the criminal liability of all the accused must be based on their individual
participation in the commission of the crime.
G.R. Nos. 178057 and 178080 — Villa v. Escalona
Petitioner Villa led the instant Petition for Review on Certiorari, praying for the
reversal of the CA's Decision dated 25 October 2006 and Resolution dated 17 May
2007 in CA-G.R. S.P. Nos. 89060 and 90153. 3 0 The Petition involves the dismissal of
the criminal charge filed against Escalona, Ramos, Saruca, and Adriano.
Due to "several pending incidents," the trial court ordered a separate trial for
accused Escalona, Saruca, Adriano, Ramos, Ampil, Concepcion, De Vera, S. Fernandez,
and Cabangon (Criminal Case No. C-38340) to commence after proceedings against
the 26 other accused in Criminal Case No. C-38340(91) shall have terminated. On 8
November 1993, the trial court found the 26 accused guilty beyond reasonable doubt.
As a result, the proceedings in Criminal Case No. C-38340 involving the nine other co-
accused recommenced on 29 November 1993. For "various reasons," the initial trial of
the case did not commence until 28 March 2005, or almost 12 years after the
arraignment of the nine accused.
Petitioner Villa assails the CA's dismissal of the criminal case involving 4 of the 9
accused, namely, Escalona, Ramos, Saruca, and Adriano. She argues that the accused
failed to assert their right to speedy trial within a reasonable period of time. She also
points out that the prosecution cannot be faulted for the delay, as the original records
and the required evidence were not at its disposal, but were still in the appellate court.
We resolve herein the various issues that we group into five.
ISSUES
1. Whether the forfeiture of petitioner Dizon's right to present evidence
constitutes denial of due process;
2. Whether the CA committed grave abuse of discretion, amounting to
lack or excess of jurisdiction when it dismissed the case against
Escalona, Ramos, Saruca, and Adriano for violation of the right of the
accused to speedy trial;
3. Whether the CA committed grave abuse of discretion, amounting to
lack or excess of jurisdiction, when it set aside the nding of
conspiracy by the trial court and adjudicated the liability of each
accused according to individual participation;
4. Whether accused Dizon is guilty of homicide; and
5. Whether the CA committed grave abuse of discretion when it
pronounced Tecson, Ama, Almeda, and Bantug guilty only of slight
physical injuries.
DISCUSSION
Resolution on Preliminary Matters
G.R. No. 151258 — Villareal v. People

In a Notice dated 26 September 2011 and while the Petition was pending
resolution, this Court took note of counsel for petitioner's Notice of Death of Party.
According to Article 89 (1) of the Revised Penal Code, criminal liability for
personal penalties is totally extinguished by the death of the convict. In contrast,
criminal liability for pecuniary penalties is extinguished if the offender dies prior to nal
judgment. The term "personal penalties" refers to the service of personal or
imprisonment penalties, 3 1 while the term "pecuniary penalties" (las pecuniarias) refers
to nes and costs, 3 2 including civil liability predicated on the criminal offense
complained of (i.e., civil liability ex delicto). 3 3 However, civil liability based on a source
of obligation other than the delict survives the death of the accused and is recoverable
through a separate civil action. 3 4 aCcADT
Thus, we hold that the death of petitioner Villareal extinguished his criminal
liability for both personal and pecuniary penalties, including his civil liability directly
arising from the delict complained of. Consequently, his Petition is hereby dismissed,
and the criminal case against him deemed closed and terminated.
G.R. No. 155101 (Dizon v. People)
In an Order dated 28 July 1993, the trial court set the dates for the reception of
evidence for accused-petitioner Dizon on the 8th, 15th, and 22nd of September; and the
5th and 12 of October 1993. 3 5 The Order likewise stated that "it will not entertain any
postponement and that all the accused who have not yet presented their respective
evidence should be ready at all times down the line, with their evidence on all said
dates. Failure on their part to present evidence when required shall therefore be
construed as waiver to present evidence." 3 6
However, on 19 August 1993, counsel for another accused manifested in open
court
that his client — Antonio General — would no longer present separate evidence.
Instead, the counsel would adopt the testimonial evidence of the other accused who
had already testi ed. 3 7 Because of this development and pursuant to the trial court's
Order that the parties "should be ready at all times down the line," the trial court
expected Dizon to present evidence on the next trial date — 25 August 1993 — instead
of his originally assigned dates. The original dates were supposed to start two weeks
later, or on 8 September 1993. 3 8 Counsel for accused Dizon was not able to present
evidence on the accelerated date. To address the situation, counsel led a Constancia
on 25 August 1993, alleging that he had to appear in a previously scheduled case, and
that he would be ready to present evidence on the dates originally assigned to his
clients. 3 9 The trial court denied the Manifestation on the same date and treated the
Constancia as a motion for postponement, in violation of the three-day-notice rule
under the Rules of Court. 4 0 Consequently, the trial court ruled that the failure of Dizon
to present evidence amounted to a waiver of that right. 4 1
Accused-petitioner Dizon thus argues that he was deprived of due process of law
when the trial court forfeited his right to present evidence. According to him, the
postponement of the 25 August 1993 hearing should have been considered justi ed,
since his original pre-assigned trial dates were not supposed to start until 8 September
1993, when he was scheduled to present evidence. He posits that he was ready to
present evidence on the dates assigned to him. He also points out that he did not ask
for a resetting of any of the said hearing dates; that he in fact insisted on being allowed
to present evidence on the dates xed by the trial court. Thus, he contends that the trial
court erred in accelerating the schedule of presentation of evidence, thereby
invalidating the finding of his guilt.
The right of the accused to present evidence is guaranteed by no less than the
Constitution itself. 4 2 Article III, Section 14 (2) thereof, provides that "in all criminal
prosecutions, the accused . . . shall enjoy the right to be heard by himself and
counsel . . ." This constitutional right includes the right to present evidence in one's
defense, 4 3 as well as the right to be present and defend oneself in person at every
stage of the proceedings. 4 4
I n Crisostomo v. Sandiganbayan , 4 5 the Sandiganbayan set the hearing of the
defense's presentation of evidence for 21, 22 and 23 June 1995. The 21 June 1995
hearing was cancelled due to "lack of quorum in the regular membership" of the
Sandiganbayan's Second Division and upon the agreement of the parties. The hearing
was reset for the next day, 22 June 1995, but Crisostomo and his counsel failed to
attend. The Sandiganbayan, on the very same day, issued an Order directing the
issuance of a warrant for the arrest of Crisostomo and the con scation of his surety
bond. The Order further declared that he had waived his right to present evidence
because of his nonappearance at "yesterday's and today's scheduled hearings." In ruling
against the Order, we held thus:
Under Section 2(c), Rule 114 and Section 1(c), Rule 115 of the Rules of
Court, Crisostomo's non-appearance during the 22 June 1995 trial was
merely a waiver of his right to be present for trial on such date only and
not for the succeeding trial dates . . .
xxx xxx xxx
Moreover, Crisostomo's absence on the 22 June 1995 hearing should not
have been deemed as a waiver of his right to present evidence . While
constitutional rights may be waived, such waiver must be clear and must be
coupled with an actual intention to relinquish the right . Crisostomo did
not voluntarily waive in person or even through his counsel the right to present
evidence. The Sandiganbayan imposed the waiver due to the agreement of the
prosecution, Calingayan, and Calingayan's counsel.
In criminal cases where the imposable penalty may be death, as in the
present case, the court is called upon to see to it that the accused is
personally made aware of the consequences of a waiver of the right to
present evidence . In fact, it is not enough that the accused is simply
warned of the consequences of another failure to attend the succeeding
hearings . The court must rst explain to the accused personally in clear terms
the exact nature and consequences of a waiver. Crisostomo was not even
forewarned. The Sandiganbayan simply went ahead to deprive Crisostomo of his
right to present evidence without even allowing Crisostomo to explain his absence
on the 22 June 1995 hearing. DCHIAS
Clearly, the waiver of the right to present evidence in a criminal

case involving a grave penalty is not assumed and taken lightly . The
presence of the accused and his counsel is indispensable so that the court could
personally conduct a searching inquiry into the waiver . . . . 4 6 (Emphasis
supplied)
The trial court should not have deemed the failure of petitioner to present
evidence on 25 August 1993 as a waiver of his right to present evidence. On the
contrary, it should have considered the excuse of counsel justi ed, especially since
counsel for another accused — General — had made a last-minute adoption of
testimonial evidence that freed up the succeeding trial dates; and since Dizon was not
scheduled to testify until two weeks later. At any rate, the trial court pre-assigned ve
hearing dates for the reception of evidence. If it really wanted to impose its Order
strictly, the most it could have done was to forfeit one out of the ve days set for
Dizon's testimonial evidence. Stripping the accused of all his pre-assigned trial dates
constitutes a patent denial of the constitutionally guaranteed right to due process.
Nevertheless, as in the case of an improvident guilty plea, an invalid waiver of the
right to present evidence and be heard does not per se work to vacate a nding of guilt
in the criminal case or to enforce an automatic remand of the case to the trial court. 4 7
In People v. Bodoso , we ruled that where facts have adequately been represented in a
criminal case, and no procedural unfairness or irregularity has prejudiced either the
prosecution or the defense as a result of the invalid waiver, the rule is that a guilty
verdict may nevertheless be upheld if the judgment is supported beyond reasonable
doubt by the evidence on record. 4 8
We do not see any material inadequacy in the relevant facts on record to resolve
the case at bar. Neither can we see any "procedural unfairness or irregularity" that
would substantially prejudice either the prosecution or the defense as a result of the
invalid waiver. In fact, the arguments set forth by accused Dizon in his Petition
corroborate the material facts relevant to decide the matter. Instead, what he is really
contesting in his Petition is the application of the law to the facts by the trial court and
the CA. Petitioner Dizon admits direct participation in the hazing of Lenny Villa by
alleging in his Petition that "all actions of the petitioner were part of the traditional
rites," and that "the alleged extension of the initiation rites was not outside the o cial
activity of the fraternity." 4 9 He even argues that "Dizon did not request for the extension
and he participated only after the activity was sanctioned." 5 0
For one reason or another, the case has been passed or turned over from one
judge or justice to another — at the trial court, at the CA, and even at the Supreme Court.
Remanding the case for the reception of the evidence of petitioner Dizon would only
in ict further injustice on the parties. This case has been going on for almost two
decades. Its resolution is long overdue. Since the key facts necessary to decide the
case have already been determined, we shall proceed to decide it.
G.R. Nos. 178057 and 178080 (Villa v. Escalona)
Petitioner Villa argues that the case against Escalona, Ramos, Saruca, and
Adriano should not have been dismissed, since they failed to assert their right to
speedy trial within a reasonable period of time. She points out that the accused failed
to raise a protest during the dormancy of the criminal case against them, and that they
asserted their right only after the trial court had dismissed the case against their co-
accused Concepcion. Petitioner also emphasizes that the trial court denied the
respective Motions to Dismiss led by Saruca, Escalona, Ramos, and Adriano, because
it found that "the prosecution could not be faulted for the delay in the movement of this
case when the original records and the evidence it may require were not at its disposal
as these were in the Court of Appeals." 5 1
The right of the accused to a speedy trial has been enshrined in Sections 14 (2)
and 16, Article III of the 1987 Constitution. 5 2 This right requires that there be a trial
free from vexatious, capricious or oppressive delays. 5 3 The right is deemed violated
when the proceeding is attended with unjusti ed postponements of trial, or when a
long period of time is allowed to elapse without the case being tried and for no cause
or justi able motive. 5 4 In determining the right of the accused to speedy trial, courts
should do more than a mathematical computation of the number of postponements of
the scheduled hearings of the case. 5 5 The conduct of both the prosecution and the
defense must be weighed. 5 6 Also to be considered are factors such as the length of
delay, the assertion or non-assertion of the right, and the prejudice wrought upon the
defendant. 5 7
We have consistently ruled in a long line of cases that a dismissal of the case
pursuant to the right of the accused to speedy trial is tantamount to acquittal. 5 8 As a
consequence, an appeal or a reconsideration of the dismissal would amount to a
violation of the principle of double jeopardy. 5 9 As we have previously discussed,
however, where the dismissal of the case is capricious, certiorari lies. 6 0 The rule on
double jeopardy is not triggered when a petition challenges the validity of the order of
dismissal instead of the correctness thereof. 6 1 Rather, grave abuse of discretion
amounts to lack of jurisdiction, and lack of jurisdiction prevents double jeopardy from
attaching. 6 2 IDaEHS
We do not see grave abuse of discretion in the CA's dismissal of the case against
accused Escalona, Ramos, Saruca, and Adriano on the basis of the violation of their
right to speedy trial. The court held thus:
An examination of the procedural history of this case would reveal that the
following factors contributed to the slow progress of the proceedings in the case
below:
xxx xxx xxx

5) The fact that the records of the case were elevated to the Court of
Appeals and the prosecution's failure to comply with the order of the court a quo
requiring them to secure certified true copies of the same.
xxx xxx xxx
While we are prepared to concede that some of the foregoing factors that
contributed to the delay of the trial of the petitioners are justi able, We
nonetheless hold that their right to speedy trial has been utterly violated in this
case . . . .
xxx xxx xxx
[T]he absence of the records in the trial court [was] due to the fact
that the records of the case were elevated to the Court of Appeals , and the
prosecution's failure to comply with the order of the court a quo
requiring it to secure certi ed true copies of the same . What is glaring
from the records is the fact that as early as September 21, 1995, the court a quo
already issued an Order requiring the prosecution, through the Department of
Justice, to secure the complete records of the case from the Court of Appeals. The
prosecution did not comply with the said Order as in fact, the same directive was
repeated by the court a quo in an Order dated December 27, 1995. Still, there was
no compliance on the part of the prosecution. It is not stated when such order
was complied with. It appears, however, that even until August 5, 2002, the
said records were still not at the disposal of the trial court because the
lack of it was made the basis of the said court in granting the motion to dismiss
filed by co-accused Concepcion . . . .
xxx xxx xxx

It is likewise noticeable that from December 27, 1995, until August 5, 2002,
or for a period of almost seven years, there was no action at all on the
part of the court a quo . Except for the pleadings led by both the
prosecution and the petitioners , the latest of which was on January 29, 1996,
followed by petitioner Saruca's motion to set case for trial on August 17, 1998
which the court did not act upon, the case remained dormant for a
considerable length of time . This prolonged inactivity whatsoever is precisely
the kind of delay that the constitution frowns upon . . . . 6 3 (Emphasis supplied)
This Court points out that on 10 January 1992, the nal amended Information
was led against Escalona, Ramos, Saruca, Ampil, S. Fernandez, Adriano, Cabangon,
Concepcion, and De Vera. 6 4 On 29 November 1993, they were all arraigned. 6 5
Unfortunately, the initial trial of the case did not commence until 28 March 2005 or
almost 12 years after arraignment. 6 6
As illustrated in our ruling in Abardo v. Sandiganbayan, the unexplained interval or
inactivity of the Sandiganbayan for close to ve years since the arraignment of the
accused amounts to an unreasonable delay in the disposition of cases — a clear
violation of the right of the accused to a speedy disposition of cases. 6 7 Thus, we held:
The delay in this case measures up to the unreasonableness of the delay
in the disposition of cases in Angchangco, Jr. vs. Ombudsman , where the Court
found the delay of six years by the Ombudsman in resolving the criminal
complaints to be violative of the constitutionally guaranteed right to a
speedy disposition of cases ; similarly, in Roque vs. O ce of the Ombudsman ,
where the Court held that the delay of almost six years disregarded the
Ombudsman's duty to act promptly on complaints before him ; and in
Cervantes vs. Sandiganbayan, where the Court held that the Sandiganbayan
gravely abused its discretion in not quashing the information which
was led six years after the initiatory complaint was led and thereby
depriving petitioner of his right to a speedy disposition of the case. So
it must be in the instant case, where the reinvestigation by the
Ombudsman has dragged on for a decade already . 6 8 (Emphasis supplied)
From the foregoing principles, we a rm the ruling of the CA in CA-G.R. SP No.

89060 that accused Escalona et al.'s right to speedy trial was violated. Since there is
nothing in the records that would show that the subject of this Petition includes
accused Ampil, S. Fernandez, Cabangon, and De Vera, the effects of this ruling shall be
limited to accused Escalona, Ramos, Saruca, and Adriano. DHETIS
G.R. No. 154954 (People v. Court of Appeals)

The rule on double jeopardy is one of the pillars of our criminal justice system. It
dictates that when a person is charged with an offense, and the case is terminated —
either by acquittal or conviction or in any other manner without the consent of the
accused — the accused cannot again be charged with the same or an identical offense.
6 9 This principle is founded upon the law of reason, justice and conscience. 7 0 It is
embodied in the civil law maxim non bis in idem found in the common law of England
and undoubtedly in every system of jurisprudence. 7 1 It found expression in the Spanish
Law, in the Constitution of the United States, and in our own Constitution as one of the
fundamental rights of the citizen, 7 2 viz.:
Article III — Bill of Rights
Section 21. No person shall be twice put in jeopardy of punishment for
the same offense. If an act is punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another prosecution for the same
act.
Rule 117, Section 7 of the Rules of Court, which implements this particular
constitutional right, provides as follows: 7 3
SEC. 7. Former conviction or acquittal; double jeopardy. — When an
accused has been convicted or acquitted, or the case against him dismissed or
otherwise terminated without his express consent by a court of competent
jurisdiction, upon a valid complaint or information or other formal charge
su cient in form and substance to sustain a conviction and after the accused
had pleaded to the charge, the conviction or acquittal of the accused or the
dismissal of the case shall be a bar to another prosecution for the offense
charged, or for any attempt to commit the same or frustration thereof, or for any
offense which necessarily includes or is necessarily included in the offense
charged in the former complaint or information.
The rule on double jeopardy thus prohibits the state from appealing the judgment
in order to reverse the acquittal or to increase the penalty imposed either through a
regular appeal under Rule 41 of the Rules of Court or through an appeal by certiorari on
pure questions of law under Rule 45 of the same Rules. 7 4 The requisites for invoking
double jeopardy are the following: (a) there is a valid complaint or information; (b) it is
led before a competent court; (c) the defendant pleaded to the charge; and (d) the
defendant was acquitted or convicted, or the case against him or her was dismissed or
otherwise terminated without the defendant's express consent. 7 5
As we have reiterated in People v. Court of Appeals and Galicia , "[a] verdict of
acquittal is immediately nal and a reexamination of the merits of such acquittal, even
in the appellate courts, will put the accused in jeopardy for the same offense. The
nality-of-acquittal doctrine has several avowed purposes. Primarily, it prevents the
State from using its criminal processes as an instrument of harassment to wear out the
accused by a multitude of cases with accumulated trials. It also serves the additional
purpose of precluding the State, following an acquittal, from successively retrying the
defendant in the hope of securing a conviction. And nally, it prevents the State,
following conviction, from retrying the defendant again in the hope of securing a greater
penalty." 7 6 We further stressed that "an acquitted defendant is entitled to the right of
repose as a direct consequence of the finality of his acquittal." 7 7
This prohibition, however, is not absolute. The state may challenge the lower
court's acquittal of the accused or the imposition of a lower penalty on the latter in the
following recognized exceptions: (1) where the prosecution is deprived of a fair
opportunity to prosecute and prove its case, tantamount to a deprivation of due
process; 7 8 (2) where there is a nding of mistrial; 7 9 or (3) where there has been a
grave abuse of discretion. 8 0
The third instance refers to this Court's judicial power under Rule 65 to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the government. 8 1 Here,
the party asking for the review must show the presence of a whimsical or capricious
exercise of judgment equivalent to lack of jurisdiction; a patent and gross abuse of
discretion amounting to an evasion of a positive duty or to a virtual refusal to perform a
duty imposed by law or to act in contemplation of law; an exercise of power in an
arbitrary and despotic manner by reason of passion and hostility; 8 2 or a blatant abuse
of authority to a point so grave and so severe as to deprive the court of its very power
to dispense justice. 8 3 In such an event, the accused cannot be considered to be at risk
of double jeopardy. 8 4
The Solicitor General led a Rule 65 Petition for Certiorari, which seeks the
reversal of (1) the acquittal of Victorino et al. and (2) the conviction of Tecson et al. for
the lesser crime of slight physical injuries, both on the basis of a misappreciation of
facts and evidence. According to the Petition, "the decision of the Court of Appeals is
not in accordance with law because private complainant and petitioner were denied due
process of law when the public respondent completely ignored the a) Position Paper . .
. b) the Motion for Partial Reconsideration . . . and c) the petitioner's Comment . . . ." 8 5
Allegedly, the CA ignored evidence when it adopted the theory of individual
responsibility; set aside the nding of conspiracy by the trial court; and failed to apply
Article 4 of the Revised Penal Code. 8 6 The Solicitor General also assails the finding that
the physical blows were in icted only by Dizon and Villareal, as well as the appreciation
of Lenny Villa's consent to hazing. 8 7 IEHaSc
In our view, what the Petition seeks is that we reexamine, reassess, and reweigh
the probative value of the evidence presented by the parties. 8 8 In People v. Maquiling ,
we held that grave abuse of discretion cannot be attributed to a court simply because it
allegedly misappreciated the facts and the evidence. 8 9 Mere errors of judgment are
correctible by an appeal or a petition for review under Rule 45 of the Rules of Court, and
not by an application for a writ of certiorari. 9 0 Therefore, pursuant to the rule on double
jeopardy, we are constrained to deny the Petition contra Victorino et al. — the 19
acquitted fraternity members.
We, however, modify the assailed judgment as regards Tecson, Ama, Almeda,
and Bantug — the four fraternity members convicted of slight physical injuries.
Indeed, we have ruled in a line of cases that the rule on double jeopardy similarly
applies when the state seeks the imposition of a higher penalty against the accused. 9 1
We have also recognized, however, that certiorari may be used to correct an abusive
judgment upon a clear demonstration that the lower court blatantly abused its authority
to a point so grave as to deprive it of its very power to dispense justice. 9 2 The present
case is one of those instances of grave abuse of discretion.
In imposing the penalty of slight physical injuries on Tecson, Ama, Almeda, and
Bantug, the CA reasoned thus:
Based on the medical ndings, it would appear that with the exclusion
of the fatal wounds in icted by the accused Dizon and Villareal , the
injuries sustained by the victim as a result of the physical punishment
heaped on him were serious in nature . However, by reason of the death
of the victim , there can be no precise means to determine the duration of
the incapacity or the medical attendance required . To do so, at this stage
would be merely speculative. In a prosecution for this crime where the category of
the offense and the severity of the penalty depend on the period of illness or
incapacity for labor, the length of this period must likewise be proved beyond
reasonable doubt in much the same manner as the same act charged [People v.
Codilla, CA-G.R. No. 4079-R, June 26, 1950]. And when proof of the said
period is absent, the crime committed should be deemed only as slight
physical injuries [People v. De los Santos , CA, 59 O.G. 4393, citing People v.
Penesa, 81 Phil. 398]. As such, this Court is constrained to rule that the injuries
in icted by the appellants, Tecson, Ama, Almeda and Bantug, Jr., are only slight
and not serious, in nature. 9 3 (Emphasis supplied and citations included)
The appellate court relied on our ruling in People v. Penesa 9 4 in nding that the
four accused should be held guilty only of slight physical injuries. According to the CA,
because of "the death of the victim, there can be no precise means to determine the
duration of the incapacity or medical attendance required." 9 5 The reliance on Penesa
was utterly misplaced. A review of that case would reveal that the accused therein was
guilty merely of slight physical injuries, because the victim's injuries neither caused
incapacity for labor nor required medical attendance. 9 6 Furthermore, he did not die. 9 7
His injuries were not even serious. 9 8 Since Penesa involved a case in which the victim
allegedly suffered physical injuries and not death, the ruling cited by the CA was
patently inapplicable.
On the contrary, the CA's ultimate conclusion that Tecson, Ama, Almeda, and
Bantug were liable merely for slight physical injuries grossly contradicts its own
ndings of fact. According to the court, the four accused "were found to have inflicted
more than the usual punishment undertaken during such initiation rites on the
person of Villa." 9 9 It then adopted the NBI medico-legal o cer's ndings that the
antecedent cause of Lenny Villa's death was the "multiple traumatic injuries" he suffered
from the initiation rites. 1 0 0 Considering that the CA found that the "physical
punishment heaped on [Lenny Villa was ] serious in nature," 1 0 1 it was patently
erroneous for the court to limit the criminal liability to slight physical injuries, which is a
light felony.
Article 4 (1) of the Revised Penal Code dictates that the perpetrator shall be
liable for the consequences of an act, even if its result is different from that intended.
Thus, once a person is found to have committed an initial felonious act, such as the
unlawful in iction of physical injuries that results in the death of the victim, courts are
required to automatically apply the legal framework governing the destruction of life.
This rule is mandatory, and not subject to discretion.
The CA's application of the legal framework governing physical injuries —
punished under Articles 262 to 266 for intentional felonies and Article 365 for culpable
felonies — is therefore tantamount to a whimsical, capricious, and abusive exercise of
judgment amounting to lack of jurisdiction. According to the Revised Penal Code, the
mandatory and legally imposable penalty in case the victim dies should be based on the
framework governing the destruction of the life of a person, punished under Articles
246 to 261 for intentional felonies and Article 365 for culpable felonies, and not under
the aforementioned provisions. We emphasize that these two types of felonies are
distinct from and legally inconsistent with each other, in that the accused cannot be
held criminally liable for physical injuries when actual death occurs. 1 0 2 HcaATE
Attributing criminal liability solely to Villareal and Dizon — as if only their acts, in
and of themselves, caused the death of Lenny Villa — is contrary to the CA's own
ndings. From proof that the death of the victim was the cumulative effect of the
multiple injuries he suffered, 1 0 3 the only logical conclusion is that criminal
responsibility should redound to all those who have been proven to have directly
participated in the in iction of physical injuries on Lenny. The accumulation of bruising
on his body caused him to suffer cardiac arrest. Accordingly, we nd that the CA
committed grave abuse of discretion amounting to lack or excess of jurisdiction in
nding Tecson, Ama, Almeda, and Bantug criminally liable for slight physical injuries. As
an allowable exception to the rule on double jeopardy, we therefore give due course to
the Petition in G.R. No. 154954.
Resolution on Ultimate Findings
According to the trial court, although hazing was not (at the time) punishable as a
crime, the intentional in iction of physical injuries on Villa was nonetheless a felonious
act under Articles 263 to 266 of the Revised Penal Code. Thus, in ruling against the
accused, the court a quo found that pursuant to Article 4 (1) of the Revised Penal Code,
the accused fraternity members were guilty of homicide, as it was the direct, natural
and logical consequence of the physical injuries they had intentionally inflicted. 1 0 4
The CA modi ed the trial court's nding of criminal liability. It ruled that there
could have been no conspiracy since the neophytes, including Lenny Villa, had
knowingly consented to the conduct of hazing during their initiation rites. The accused
fraternity members, therefore, were liable only for the consequences of their individual
acts. Accordingly, 19 of the accused — Victorino et al. — were acquitted; 4 of them —
Tecson et al. — were found guilty of slight physical injuries; and the remaining 2 — Dizon
and Villareal — were found guilty of homicide.
The issue at hand does not concern a typical criminal case wherein the
perpetrator clearly commits a felony in order to take revenge upon, to gain advantage
over, to harm maliciously, or to get even with, the victim. Rather, the case involves an ex
ante situation in which a man — driven by his own desire to join a society of men —
pledged to go through physically and psychologically strenuous admission rituals, just
so he could enter the fraternity. Thus, in order to understand how our criminal laws
apply to such situation absent the Anti-Hazing Law, we deem it necessary to make a
brief exposition on the underlying concepts shaping intentional felonies, as well as on
the nature of physical and psychological initiations widely known as hazing.
Intentional Felony and Conspiracy
Our Revised Penal Code belongs to the classical school of thought. 1 0 5 The
classical theory posits that a human person is essentially a moral creature with an
absolute free will to choose between good and evil. 1 0 6 It asserts that one should only
be adjudged or held accountable for wrongful acts so long as free will appears
unimpaired. 1 0 7 The basic postulate of the classical penal system is that humans are
rational and calculating beings who guide their actions with reference to the principles
of pleasure and pain. 1 0 8 They refrain from criminal acts if threatened with punishment
su cient to cancel the hope of possible gain or advantage in committing the crime. 1 0 9
Here, criminal liability is thus based on the free will and moral blame of the actor. 1 1 0
The identity of mens rea — de ned as a guilty mind, a guilty or wrongful purpose or
criminal intent — is the predominant consideration. 1 1 1 Thus, it is not enough to do what
the law prohibits. 1 1 2 In order for an intentional felony to exist, it is necessary that the
act be committed by means of dolo or "malice." 1 1 3
The term "dolo" or "malice" is a complex idea involving the elements of freedom,
intelligence, and intent. 1 1 4 The rst element, freedom, refers to an act done with
deliberation and with power to choose between two things. 1 1 5 The second element,
intelligence, concerns the ability to determine the morality of human acts, as well as the
capacity to distinguish between a licit and an illicit act. 1 1 6 The last element, intent,
involves an aim or a determination to do a certain act. 1 1 7
The element of intent — on which this Court shall focus — is described as the
state of mind accompanying an act, especially a forbidden act. 1 1 8 It refers to the
purpose of the mind and the resolve with which a person proceeds. 1 1 9 It does not refer
to mere will, for the latter pertains to the act, while intent concerns the result of the act.
1 2 0 While motive is the "moving power" that impels one to action for a de nite result,
intent is the "purpose" of using a particular means to produce the result. 1 2 1 On the
other hand, the term "felonious" means, inter alia, malicious, villainous, and/or
proceeding from an evil heart or purpose. 1 2 2 With these elements taken together, the
requirement of intent in intentional felony must refer to malicious intent, which is a
vicious and malevolent state of mind accompanying a forbidden act. Stated otherwise,
intentional felony requires the existence of dolus malus — that the act or omission be
done "willfully," "maliciously," "with deliberate evil intent," and "with malice aforethought."
1 2 3 The maxim is actus non facit reum, nisi mens sit rea — a crime is not committed if
the mind of the person performing the act complained of is innocent. 1 2 4 As is required
of the other elements of a felony, the existence of malicious intent must be proven
beyond reasonable doubt. 1 2 5 AcICHD
In turn, the existence of malicious intent is necessary in order for conspiracy to

attach. Article 8 of the Revised Penal Code — which provides that "conspiracy exists
when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it" — is to be interpreted to refer only to felonies
committed by means of dolo or malice. The phrase "coming to an agreement" connotes
the existence of a prefaced "intent" to cause injury to another, an element present only
in intentional felonies. In culpable felonies or criminal negligence, the injury in icted on
another is unintentional, the wrong done being simply the result of an act performed
without malice or criminal design. 1 2 6 Here, a person performs an initial lawful deed;
however, due to negligence, imprudence, lack of foresight, or lack of skill, the deed
results in a wrongful act. 1 2 7 Verily, a deliberate intent to do an unlawful act, which is a
requisite in conspiracy, is inconsistent with the idea of a felony committed by means of
culpa. 1 2 8
The presence of an initial malicious intent to commit a felony is thus a vital
ingredient in establishing the commission of the intentional felony of homicide. 1 2 9
Being mala in se, the felony of homicide requires the existence of malice or dolo 1 3 0
immediately before or simultaneously with the in iction of injuries. 1 3 1 Intent to kill — or
animus inter cendi — cannot and should not be inferred, unless there is proof beyond
reasonable doubt of such intent. 1 3 2 Furthermore, the victim's death must not have
been the product of accident, natural cause, or suicide. 1 3 3 If death resulted from an act
executed without malice or criminal intent — but with lack of foresight, carelessness, or
negligence — the act must be quali ed as reckless or simple negligence or imprudence
resulting in homicide. 1 3 4
Hazing and other forms of initiation rites
The notion of hazing is not a recent development in our society. 1 3 5 It is said that,
throughout history, hazing in some form or another has been associated with
organizations ranging from military groups to indigenous tribes. 1 3 6 Some say that
elements of hazing can be traced back to the Middle Ages, during which new students
who enrolled in European universities worked as servants for upperclassmen. 1 3 7 It is
believed that the concept of hazing is rooted in ancient Greece, 1 3 8 where young men
recruited into the military were tested with pain or challenged to demonstrate the limits
of their loyalty and to prepare the recruits for battle. 1 3 9 Modern fraternities and
sororities espouse some connection to these values of ancient Greek civilization. 1 4 0
According to a scholar, this concept lends historical legitimacy to a "tradition" or "ritual"
whereby prospective members are asked to prove their worthiness and loyalty to the
organization in which they seek to attain membership through hazing. 1 4 1
Thus, it is said that in the Greek fraternity system, custom requires a student
wishing to join an organization to receive an invitation in order to be a neophyte for a
particular chapter. 1 4 2 The neophyte period is usually one to two semesters long. 1 4 3
During the "program," neophytes are required to interview and to get to know the active
members of the chapter; to learn chapter history; to understand the principles of the
organization; to maintain a speci ed grade point average; to participate in the
organization's activities; and to show dignity and respect for their fellow neophytes, the
organization, and its active and alumni members. 1 4 4 Some chapters require the
initiation activities for a recruit to involve hazing acts during the entire neophyte stage.
145
Hazing, as commonly understood, involves an initiation rite or ritual that serves

as prerequisite for admission to an organization. 1 4 6 In hazing, the "recruit," "pledge,"
"neophyte," "initiate," "applicant"— or any other term by which the organization may refer
to such a person — is generally placed in embarrassing or humiliating situations, like
being forced to do menial, silly, foolish, or other similar tasks or activities. 1 4 7 It
encompasses different forms of conduct that humiliate, degrade, abuse, or physically
endanger those who desire membership in the organization. 1 4 8 These acts usually
involve physical or psychological suffering or injury. 1 4 9
The concept of initiation rites in the country is nothing new. In fact, more than a
century ago, our national hero — Andres Bonifacio — organized a secret society named
Kataastaasan Kagalanggalangang Katipunan ng mga Anak ng Bayan (The Highest and
Most Venerable Association of the Sons and Daughters of the Nation). 1 5 0 The
Katipunan, or KKK, started as a small confraternity believed to be inspired by European
Freemasonry, as well as by confraternities or sodalities approved by the Catholic
Church. 1 5 1 The Katipunan's ideology was brought home to each member through the
society's initiation ritual. 1 5 2 It is said that initiates were brought to a dark room, lit by a
single point of illumination, and were asked a series of questions to determine their
tness, loyalty, courage, and resolve. 1 5 3 They were made to go through vigorous trials
such as "pagsuot sa isang lungga" or "[pagtalon] sa balon." 1 5 4 It would seem that they
were also made to withstand the blow of "pangherong bakal sa pisngi" and to endure a
"matalas na punyal." 1 5 5 As a nal step in the ritual, the neophyte Katipunero was made
to sign membership papers with the his own blood. 1 5 6
It is believed that the Greek fraternity system was transported by the Americans
to the Philippines in the late 19th century. As can be seen in the following instances, the
manner of hazing in the United States was jarringly similar to that in icted by the Aquila
Fraternity on Lenny Villa. AcaEDC
Early in 1865, upperclassmen at West Point Academy forced the fourth classmen
to do exhausting physical exercises that sometimes resulted in permanent physical
damage; to eat or drink unpalatable foods; and in various ways to humiliate themselves.
1 5 7 In 1901, General Douglas MacArthur got involved in a congressional investigation of
hazing at the academy during his second year at West Point. 1 5 8
In Easler v. Hejaz Temple of Greenville, decided in 1985, the candidate-victim was
injured during the shriner's hazing event, which was part of the initiation ceremonies for
Hejaz membership. 1 5 9 The ritual involved what was known as the "mattress-rotating
barrel trick." 1 6 0 It required each candidate to slide down an eight to nine-foot-high
metal board onto connected mattresses leading to a barrel, over which the candidate
was required to climb. 1 6 1 Members of Hejaz would stand on each side of the
mattresses and barrel and fun-paddle candidates en route to the barrel. 1 6 2
In a video footage taken in 1991, U.S. Marine paratroopers in Camp Lejeune,
North Carolina, were seen performing a ceremony in which they pinned paratrooper
jump wings directly onto the neophyte paratroopers' chests. 1 6 3 The victims were
shown writhing and crying out in pain as others pounded the spiked medals through the
shirts and into the chests of the victims. 1 6 4
In State v. Allen, decided in 1995, the Southeast Missouri State University chapter
of Kappa Alpha Psi invited male students to enter into a pledgeship program. 1 6 5 The
fraternity members subjected the pledges to repeated physical abuse including
repeated, open-hand strikes at the nape, the chest, and the back; caning of the bare
soles of the feet and buttocks; blows to the back with the use of a heavy book and a
cookie sheet while the pledges were on their hands and knees; various kicks and
punches to the body; and "body slamming," an activity in which active members of the
fraternity lifted pledges up in the air and dropped them to the ground. 1 6 6 The fraternity
members then put the pledges through a seven-station circle of physical abuse. 1 6 7
I n Ex Parte Barran, decided in 1998, the pledge-victim went through hazing by
fraternity members of the Kappa Alpha Order at the Auburn University in Alabama. 1 6 8
The hazing included the following: (1) having to dig a ditch and jump into it after it had
been lled with water, urine, feces, dinner leftovers, and vomit; (2) receiving paddlings
on the buttocks; (3) being pushed and kicked, often onto walls or into pits and trash
cans; (4) eating foods like peppers, hot sauce, butter, and "yerks" (a mixture of hot
sauce, mayonnaise, butter, beans, and other items); (5) doing chores for the fraternity
and its members, such as cleaning the fraternity house and yard, being designated as
driver, and running errands; (6) appearing regularly at 2 a.m. "meetings," during which
the pledges would be hazed for a couple of hours; and (7) "running the gauntlet," during
which the pledges were pushed, kicked, and hit as they ran down a hallway and
descended down a flight of stairs. 1 6 9
I n Lloyd v. Alpha Phi Alpha Fraternity , decided in 1999, the victim — Sylvester
Lloyd — was accepted to pledge at the Cornell University chapter of the Alpha Phi Alpha
Fraternity. 1 7 0 He participated in initiation activities, which included various forms of
physical beatings and torture, psychological coercion and embarrassment. 1 7 1
I n Kenner v. Kappa Alpha Psi Fraternity , decided in 2002, the initiate-victim
suffered injuries from hazing activities during the fraternity's initiation rites. 1 7 2 Kenner
and the other initiates went through psychological and physical hazing, including being
paddled on the buttocks for more than 200 times. 1 7 3
I n Morton v. State , Marcus Jones — a university student in Florida — sought
initiation into the campus chapter of the Kappa Alpha Psi Fraternity during the 2005-06
academic year. 1 7 4 The pledge's efforts to join the fraternity culminated in a series of
initiation rituals conducted in four nights. Jones, together with other candidates, was
blindfolded, verbally harassed, and caned on his face and buttocks. 1 7 5 In these rituals
described as "preliminaries," which lasted for two evenings, he received approximately
60 canings on his buttocks. 1 7 6 During the last two days of the hazing, the rituals
intensi ed. 1 7 7 The pledges sustained roughly 210 cane strikes during the four-night
initiation. 1 7 8 Jones and several other candidates passed out. 1 7 9
The purported raison d'Ãªtre behind hazing practices is the proverbial "birth by
re," through which the pledge who has successfully withstood the hazing proves his or
her worth. 1 8 0 Some organizations even believe that hazing is the path to
enlightenment. It is said that this process enables the organization to establish unity
among the pledges and, hence, reinforces and ensures the future of the organization.
181 Alleged bene ts of joining include leadership opportunities; improved academic
performance; higher self-esteem; professional networking opportunities; and the esprit
d'corp associated with close, almost filial, friendship and common cause. 1 8 2
Anti-Hazing laws in the U.S.
The rst hazing statute in the U.S. appeared in 1874 in response to hazing in the
military. 1 8 3 The hazing of recruits and plebes in the armed services was so prevalent
that Congress prohibited all forms of military hazing, harmful or not. 1 8 4 It was not until
1901 that Illinois passed the rst state anti-hazing law, criminalizing conduct "whereby
any one sustains an injury to his [or her] person therefrom." 1 8 5 EHScCA
However, it was not until the 1980s and 1990s, due in large part to the efforts of
t he Committee to Halt Useless College Killings and other similar organizations, that
states increasingly began to enact legislation prohibiting and/or criminalizing hazing.
1 8 6 As of 2008, all but six states had enacted criminal or civil statutes proscribing
hazing. 1 8 7 Most anti-hazing laws in the U.S. treat hazing as a misdemeanor and carry
relatively light consequences for even the most severe situations. 1 8 8 Only a few states
with anti-hazing laws consider hazing as a felony in case death or great bodily harm
occurs. 1 8 9
Under the laws of Illinois, hazing is a Class A misdemeanor, except hazing that
results in death or great bodily harm, which is a Class 4 felony. 1 9 0 In a Class 4 felony, a
sentence of imprisonment shall be for a term of not less than one year and not more
than three years. 1 9 1 Indiana criminal law provides that a person who recklessly,
knowingly, or intentionally performs hazing that results in serious bodily injury to a
person commits criminal recklessness, a Class D felony. 1 9 2
The offense becomes a Class C felony if committed by means of a deadly
weapon. 1 9 3 As an element of a Class C felony — criminal recklessness — resulting in
serious bodily injury, death falls under the category of "serious bodily injury." 1 9 4 A
person who commits a Class C felony is imprisoned for a fixed term of between two (2)
and eight (8) years, with the advisory sentence being four (4) years. 1 9 5 Pursuant to
Missouri law, hazing is a Class A misdemeanor, unless the act creates a substantial risk
to the life of the student or prospective member, in which case it becomes a Class C
felony. 1 9 6 A Class C felony provides for an imprisonment term not to exceed seven
years. 1 9 7
In Texas, hazing that causes the death of another is a state jail felony. 1 9 8 An
individual adjudged guilty of a state jail felony is punished by con nement in a state jail
for any term of not more than two years or not less than 180 days. 1 9 9 Under Utah law,
if hazing results in serious bodily injury, the hazer is guilty of a third-degree felony. 2 0 0 A
person who has been convicted of a third-degree felony may be sentenced to
imprisonment for a term not to exceed ve years. 2 0 1 West Virginia law provides that if
the act of hazing would otherwise be deemed a felony, the hazer may be found guilty
thereof and subject to penalties provided therefor. 2 0 2 In Wisconsin, a person is guilty
of a Class G felony if hazing results in the death of another. 2 0 3 A Class G felony carries
a fine not to exceed $25,000 or imprisonment not to exceed 10 years, or both. 2 0 4
In certain states in the U.S., victims of hazing were left with limited remedies, as
there was no hazing statute. 2 0 5 This situation was exempli ed in Ballou v. Sigma Nu
General Fraternity, wherein Barry Ballou's family resorted to a civil action for wrongful
death, since there was no anti-hazing statute in South Carolina until 1994. 2 0 6
The existence of animus inter cendi or intent to kill not proven beyond
reasonable doubt
The presence of an ex ante situation — in this case, fraternity initiation rites —
does not automatically amount to the absence of malicious intent or dolus malus. If it
is proven beyond reasonable doubt that the perpetrators were equipped with a guilty
mind — whether or not there is a contextual background or factual premise — they are
still criminally liable for intentional felony.
The trial court, the CA, and the Solicitor General are all in agreement that — with
the exception of Villareal and Dizon — accused Tecson, Ama, Almeda, and Bantug did
not have the animus inter cendi or intent to kill Lenny Villa or the other neophytes. We
shall no longer disturb this finding.
As regards Villareal and Dizon, the CA modi ed the Decision of the trial court and
found that the two accused had the animus inter cendi or intent to kill Lenny Villa, not
merely to in ict physical injuries on him. It justi ed its nding of homicide against Dizon
by holding that he had apparently been motivated by ill will while beating up Villa. Dizon
kept repeating that his father's parking space had been stolen by the victim's father. 2 0 7
As to Villareal, the court said that the accused suspected the family of Bienvenido
Marquez, one of the neophytes, to have had a hand in the death of Villareal's brother. 2 0 8
The CA then ruled as follows:
The two had their own axes to grind against Villa and Marquez . It
was very clear that they acted with evil and criminal intent. The evidence on this
matter is unrebutted and so for the death of Villa, a p p el l a n ts Dizon and
Villareal must and should face the consequence of their acts, that is, to
be held liable for the crime of homicide. 2 0 9 (Emphasis supplied)
We cannot subscribe to this conclusion.

The appellate court relied mainly on the testimony of Bienvenido Marquez to
determine the existence of animus inter cendi. For a full appreciation of the context in
which the supposed utterances were made, the Court deems it necessary to reproduce
the relevant portions of witness Marquez's testimony: IEHSDA
Witness
We were brought up into [Michael Musngi's] room and we were briefed as
to what to expect during the next three days and we were told the members
of the fraternity and their batch and we were also told about the fraternity
song, sir.
xxx xxx xxx
Witness
We were escorted out of [Michael Musngi's] house and we were made to

ride a van and we were brought to another place in Kalookan City which I
later found to be the place of Mariano Almeda, sir.
xxx xxx xxx
Witness
Upon arrival, we were instructed to bow our head down and to link our
arms and then the driver of the van and other members of the Aquilans
who were inside left us inside the van, sir.
xxx xxx xxx
Witness
We heard voices shouted outside the van to the effect, "Villa akin
ka," "Asuncion Patay ka" and the people outside pound the van,
rock the van, sir.
Atty. Tadiar
Will you please recall in what tone of voice and how strong a voice these
remarks uttered upon your arrival?
Witness
Some were almost shouting, you could feel the sense of excitement in their
voices, sir.
xxx xxx xxx
Atty. Tadiar
During all these times that the van was being rocked through and through,
what were the voices or utterances that you heard?
Witness
"Villa akin ka," "Asuncion patay ka," "Recinto patay ka sa amin,"
etc., sir.
Atty. Tadiar
And those utterances and threats, how long did they continue during the
rocking of the van which lasted for 5 minutes?
xxx xxx xxx
Witness
Even after they rocked the van, we still kept on hearing voices, sir.
xxx xxx xxx

Atty. Tadiar
During the time that this rounds [of physical beating] were being in icted,
was there any utterances by anybody?
Witness
Yes sir. Some were piercing, some were discouraging, and some
were encouraging others who were pounding and beating us, it
was just like a esta atmosphere , actually some of them enjoyed
looking us being pounded, sir.
Atty. Tadiar
Do you recall what were those voices that you heard?
Witness

One particular utterance always said was, they asked us whether "matigas
pa yan, kayang-kaya pa niyan."
Atty. Tadiar
Do you know who in particular uttered those particular words that you
quote? HDITCS
Witness
I cannot particularly point to because there were utterances
simultaneously, I could not really pin point who uttered those words, sir.
xxx xxx xxx

Atty. Tadiar
Were there any utterances that you heard during the conduct of this Bicol
Express?
Witness
Yes, sir I heard utterances.

Atty. Tadiar
Will you please recall to this Honorable Court what were the utterances that
you remember?
Witness
For example, one person particularly Boyet Dizon stepped on my thigh,
he would say that and I quote "ito, yung pamilya nito ay
pinapatay yung kapatid ko," so that would in turn sort of justifying him
in in icting more serious pain on me. So instead of just walking, he would
jump on my thighs and then after on was Lenny Villa. He was saying
to the effect that "this guy, his father stole the parking space of
my father," sir. So, that's why he in icted more pain on Villa and that
went on, sir.
Atty. Tadiar
And you were referring to which particular accused?
Witness
Boyet Dizon , sir.

Atty. Tadiar
When Boyet Dizon at that particular time was accusing you of having your
family have his brother killed, what was your response?
Witness
Of course, I knew sir that it was not true and that he was just
making it up sir. So he said that I knew nothing of that incident.
However, he just in fact after the Bicol Express, he kept on uttering those
words/statements so that it would in turn justify him and to give me harder
blows, sir.
xxx xxx xxx
Atty. Tadiar
You mentioned about Dizon in particular mentioning that Lenny
Villa's father stole the parking space allotted for his father, do
you recall who were within hearing distance when that utterance
was made?
Witness
Yes, sir. All of the neophytes heard that utterance, sir.
xxx xxx xxx

Witness
There were different times made this accusation so there were different
people who heard from time to time, sir.
xxx xxx xxx

Atty. Tadiar
Can you tell the Honorable Court when was the next accusation against
Lenny Villa's father was made?
Witness
When we were line up against the wall, Boyet Dizon came near to us
and when Lenny Villa's turn, I heard him uttered those statements,
sir.
Atty. Tadiar cCSHET
What happened after he made this accusation to Lenny Villa's father?
Witness
He continued to inflict blows on Lenny Villa.
Atty. Tadiar
How were those blows inflicted?
Witness
There were slaps and he knelt on Lenny Villa's thighs and sometime he
stand up and he kicked his thighs and sometimes jumped at it, sir.
xxx xxx xxx
Atty. Tadiar
We would go on to the second day but not right now. You mentioned also
th a t accusations made by Dizon "you or your family had his
brother killed," can you inform this Honorable Court what exactly
were the accusations that were charged against you while
inflicting blows upon you in particular?
Witness
While he was in icting blows upon me, he told me in particular if I knew
that his family who had his brother killed, and he said that his brother was
an NPA, sir so I knew that it was just a story that he made up and I
said that I knew nothing about it and he continued in icting
blows on me, sir. And another incident was when a talk was being given,
Dizon was on another part of the pelota court and I was sort of looking and
we saw that he was drinking beer, and he said and I quote: "Marquez,
Marquez, ano ang tinitingin-tingin mo diyan, ikaw yung pamilya
mo ang nagpapatay sa aking kapatid, yari ka sa akin," sir.
Atty. Tadiar
What else?
Witness
That's all, sir.
Atty. Tadiar
And on that rst night of February 8, 1991, did ever a doctor or a physician
came around as promised to you earlier?
Witness
No, sir. 2 1 0 (Emphasis supplied)
On cross-examination, witness Bienvenido Marquez testified thus:

Judge Purisima
When you testi ed on direct examination Mr. Marquez, have you stated
that there was a brie ng that was conducted immediately before your
initiation as regards to what to expect during the initiation, did I hear you
right?
Witness
Yes, sir.
Judge Purisima
Who did the briefing?

Witness
Mr. Michael Musngi, sir and Nelson Victorino.
Judge Purisima
Will you kindly tell the Honorable Court what they told you to expect during
the initiation?
Witness
They told us at the time we would be brought to a particular place, we
would be mocked at, sir.
Judge Purisima IDAaCc
So, you expected to be mocked at, ridiculed, humiliated etc., and

the likes?
Witness
Yes, sir.
Judge Purisima
You were also told beforehand that there would be physical contact?
Witness
Yes, sir at the briefing.

xxx xxx xxx
Witness
Yes, sir, because they informed that we could immediately go back to

school. All the bruises would be limited to our arms and legs, sir. So, if we
wear the regular school uniforms like long sleeves, it would be covered
actually so we have no thinking that our face would be slapped, sir.
Judge Purisima
So, you mean to say that beforehand that you would have bruises on your
body but that will be covered?
Witness
Yes, sir.
Judge Purisima
So, what kind of physical contact or implements that you expect that
would create bruises to your body?
Witness
At that point I am already sure that there would be hitting by a paddling or

paddle, sir.
xxx xxx xxx
Judge Purisima
N o w , will you admit Mr. Marquez that much of the initiation

procedures is psychological in nature?
Witness
Combination , sir. 2 1 1 (Emphasis supplied)
xxx xxx xxx
Atty. Jimenez
The initiation that was conducted did not consist only of physical
initiation, meaning body contact, is that correct?
Witness
Yes, sir.
Atty. Jimenez
Part of the initiation was the so-called psychological initiation,

correct?
Witness
Yes, sir.
Atty. Jimenez
And this consisted of making you believe of things calculated to
terrify you, scare you, correct?
Witness
Yes, sir.
Atty. Jimenez
In other words, the initiating masters made belief situation intended
to, I repeat, terrify you, frighten you, scare you into perhaps
quitting the initiation, is this correct?HIACEa
Witness
Sometimes sir, yes.
Atty. Jimenez
You said on direct that while Mr. Dizon was initiating you, he said or he
was supposed to have said according to you that your family were
responsible for the killing of his brother who was an NPA, do you
remember saying that?
Witness
Yes, sir.
Atty. Jimenez
You also said in connection with that statement said to you by Dizon that
you did not believe him because that is not true, correct?
Witness
Yes, sir.
Atty. Jimenez
In other words, he was only psychologizing you perhaps, the
purpose as I have mentioned before, terrifying you, scaring you or
frightening you into quitting the initiation, this is correct?
Witness
No, sir, perhaps it is one but the main reason, I think, why he was
saying those things was because he wanted to inflict injury.

Atty. Jimenez
He did not tell that to you. That is your only perception, correct?
Witness
No, sir, because at one point, while he was telling this to Villareal, he was
hitting me.
Atty. Jimenez
But did you not say earlier that you [were] subjected to the same forms of
initiation by all the initiating masters? You said that earlier, right?
Witness
Yes, sir.
Atty. Jimenez
Are you saying also that the others who jumped on you or kicked you said
something similar as was told to you by Mr. Dizon?
Witness
No, sir.
Atty. Jimenez
But the fact remains that in the Bicol Express for instance, the masters
would run on your thighs, right?
Witness
Yes, sir.
Atty. Jimenez
This was the regular procedure that was followed by the initiating masters
not only on you but also on the other neophytes?
Witness
Yes, sir.
Atty. Jimenez
In other words, it is fair to say that whatever forms of initiation
was administered by one master, was also administered by one
master on a neophyte, was also administered by another master
on the other neophyte, this is correct? CcSEIH
Witness
Yes, sir. 212 (Emphasis supplied)
According to the Solicitor General himself, the ill motives attributed by the CA to
Dizon and Villareal were "baseless," 2 1 3 since the statements of the accused were "just
part of the psychological initiation calculated to instill fear on the part of the
neophytes"; that "[t]here is no element of truth in it as testi ed by Bienvenido Marquez";
and that the "harsh words uttered by Petitioner and Villareal are part of 'tradition'
concurred and accepted by all the fraternity members during their initiation rites." 2 1 4
We agree with the Solicitor General.
The foregoing testimony of witness Marquez reveals a glaring mistake of
substantial proportion on the part of the CA — it mistook the utterances of Dizon for
those of Villareal. Such inaccuracy cannot be tolerated, especially because it was the
CA's primary basis for nding that Villareal had the intent to kill Lenny Villa, thereby
making Villareal guilty of the intentional felony of homicide. To repeat, according to
Bienvenido Marquez's testimony, as reproduced above, it was Dizon who uttered both
"accusations" against Villa and Marquez; Villareal had no participation whatsoever in the
specific threats referred to by the CA. It was "Boyet Dizon [who] stepped on [Marquez's]
thigh"; and who told witness Marquez, " [I]to, yung pamilya nito ay pinapatay yung
kapatid ko." It was also Dizon who jumped on Villa's thighs while saying, "[T]his guy, his
father stole the parking space of my father." With the testimony clari ed, we nd that
the CA had no basis for concluding the existence of intent to kill based solely thereon.
As to the existence of animus inter cendi on the part of Dizon, we refer to the
entire factual milieu and contextual premise of the incident to fully appreciate and
understand the testimony of witness Marquez. At the outset, the neophytes were
briefed that they would be subjected to psychological pressure in order to scare them.
They knew that they would be mocked, ridiculed, and intimidated. They heard fraternity
members shout, "Patay ka, Recinto," "Yari ka , Recinto," "Villa, akin ka," "Asuncion, gulpi
ka," "Putang ina mo, Asuncion," "Putang ina nyo, patay kayo sa amin," or some other
words to that effect. 2 1 5 While beating the neophytes, Dizon accused Marquez of the
death of the former's purported NPA brother, and then blamed Lenny Villa's father for
stealing the parking space of Dizon's father. According to the Solicitor General, these
statements, including those of the accused Dizon, were all part of the psychological
initiation employed by the Aquila Fraternity. 2 1 6
Thus, to our understanding, accused Dizon's way of in icting psychological
pressure was through hurling make-believe accusations at the initiates. He concocted
the ctitious stories, so that he could "justify" giving the neophytes harder blows, all in
the context of fraternity initiation and role playing. Even one of the neophytes admitted
that the accusations were untrue and made-up.
The in iction of psychological pressure is not unusual in the conduct of hazing. In
fact, during the Senate deliberations on the then proposed Anti-Hazing Law, former
Senator Lina spoke as follows:
Senator Lina. — so as to capture the intent that we conveyed during the
period of interpellations on why we included the phrase "or psychological pain
and suffering."
xxx xxx xxx
So that if no direct physical harm is in icted upon the neophyte or the
recruit but the recruit or neophyte is made to undergo certain acts which
I already described yesterday, like playing the Russian roulette extensively to test
the readiness and the willingness of the neophyte or recruit to continue
his desire to be a member of the fraternity, sorority or similar
organization or playing and putting a noose on the neck of the neophyte or
recruit, making the recruit or neophyte stand on the ledge of the fourth oor of the
building facing outside, asking him to jump outside after making him turn around
several times but the reality is that he will be made to jump towards the inside
portion of the building — these are the mental or psychological tests that are
resorted to by these organizations, sororities or fraternities . The doctors
who appeared during the public hearing testi ed that such acts can result in
some mental aberration, that they can even lead to psychosis, neurosis or
insanity. This is what we want to prevent. 2 1 7 (Emphasis supplied)
Thus, without proof beyond reasonable doubt, Dizon's behavior must not be
automatically viewed as evidence of a genuine, evil motivation to kill Lenny Villa. Rather,
it must be taken within the context of the fraternity's psychological initiation. This Court
points out that it was not even established whether the fathers of Dizon and Villa really
had any familiarity with each other as would lend credence to the veracity of Dizon's
threats. The testimony of Lenny's co-neophyte, Marquez, only con rmed this view.
According to Marquez, he "knew it was not true and that [Dizon] was just making it up. . .
." 2 1 8 Even the trial court did not give weight to the utterances of Dizon as constituting
intent to kill: "[T]he cumulative acts of all the accused were not directed toward killing
Villa, but merely to in ict physical harm as part of the fraternity initiation rites . . . ." 2 1 9
The Solicitor General shares the same view. aSTAcH
Verily, we cannot sustain the CA in nding the accused Dizon guilty of homicide
under Article 249 of the Revised Penal Code on the basis of the existence of intent to
kill. Animus inter cendi cannot and should not be inferred unless there is proof beyond
reasonable doubt of such intent. 2 2 0 Instead, we adopt and reinstate the nding of
the trial court in part, insofar as it ruled that none of the fraternity members
had the specific intent to kill Lenny Villa . 2 2 1
The existence of animus iniuriandi or malicious intent to injure not proven
beyond reasonable doubt
The Solicitor General argues, instead, that there was an intent to in ict physical
injuries on Lenny Villa. Echoing the Decision of the trial court, the Solicitor General then
posits that since all of the accused fraternity members conspired to in ict physical
injuries on Lenny Villa and death ensued, all of them should be liable for the crime of
homicide pursuant to Article 4 (1) of the Revised Penal Code.
In order to be found guilty of any of the felonious acts under Articles 262 to 266
of the Revised Penal Code, 2 2 2 the employment of physical injuries must be coupled
with dolus malus. As an act that is mala in se, the existence of malicious intent is
fundamental, since injury arises from the mental state of the wrongdoer — iniuria ex
affectu facientis consistat. If there is no criminal intent, the accused cannot be found
guilty of an intentional felony. Thus, in case of physical injuries under the Revised Penal
Code, there must be a speci c animus iniuriandi or malicious intention to do wrong
against the physical integrity or well-being of a person, so as to incapacitate and
deprive the victim of certain bodily functions. Without proof beyond reasonable doubt
of the required animus iniuriandi, the overt act of in icting physical injuries per se
merely satis es the elements of freedom and intelligence in an intentional felony. The
commission of the act does not, in itself, make a man guilty unless his intentions are.
223
Thus, we have ruled in a number of instances 2 2 4 that the mere in iction of

physical injuries, absent malicious intent, does not make a person automatically liable
for an intentional felony. In Bagajo v. People , 2 2 5 the accused teacher, using a bamboo
stick, whipped one of her students behind her legs and thighs as a form of discipline.
The student suffered lesions and bruises from the corporal punishment. In reversing
the trial court's nding of criminal liability for slight physical injuries, this Court stated
thus: "Independently of any civil or administrative responsibility . . . [w]e are persuaded
that she did not do what she had done with criminal intent . . . the means she actually
used was moderate and that she was not motivated by ill-will, hatred or any malevolent
intent." Considering the applicable laws, we then ruled that "as a matter of law,
petitioner did not incur any criminal liability for her act of whipping her pupil." In People
v. Carmen, 2 2 6 the accused members of the religious group known as the Missionaries
of Our Lady of Fatima — under the guise of a "ritual or treatment" — plunged the head of
the victim into a barrel of water, banged his head against a bench, pounded his chest
with sts, and stabbed him on the side with a kitchen knife, in order to cure him of
"nervous breakdown" by expelling through those means the bad spirits possessing him.
The collective acts of the group caused the death of the victim. Since malicious intent
was not proven, we reversed the trial court's nding of liability for murder under Article
4 of the Revised Penal Code and instead ruled that the accused should be held
criminally liable for reckless imprudence resulting in homicide under Article 365
thereof.
Indeed, the threshold question is whether the accused's initial acts of in icting
physical pain on the neophytes were attended by animus iniuriandi amounting to a
felonious act punishable under the Revised Penal Code, thereby making it subject to
Article 4 (1) thereof. In People v. Regato , we ruled that malicious intent must be judged
by the action, conduct, and external acts of the accused. 2 2 7 What persons do is the
best index of their intention. 2 2 8 We have also ruled that the method employed, the kind
of weapon used, and the parts of the body on which the injury was in icted may be
determinative of the intent of the perpetrator. 2 2 9 The Court shall thus examine the
whole contextual background surrounding the death of Lenny Villa.
Lenny died during Aquila's fraternity initiation rites. The night before the
commencement of the rites, they were briefed on what to expect. They were told that
there would be physical beatings, that the whole event would last for three days, and
that they could quit anytime. On their rst night, they were subjected to "traditional"
initiation rites, including the "Indian Run," "Bicol Express," "Rounds," and the "Auxies'
Privilege Round." The beatings were predominantly directed at the neophytes' arms and
legs.
In the morning of their second day of initiation, they were made to present comic
plays and to play rough basketball. They were also required to memorize and recite the
Aquila Fraternity's principles. Late in the afternoon, they were once again subjected to
"traditional" initiation rituals. When the rituals were o cially reopened on the insistence
of Dizon and Villareal, the neophytes were subjected to another "traditional" ritual —
paddling by the fraternity.
During the whole initiation rites, auxiliaries were assigned to the neophytes. The
auxiliaries protected the neophytes by functioning as human barriers and shielding
them from those who were designated to in ict physical and psychological pain on the
initiates. 2 3 0 It was their regular duty to stop foul or excessive physical blows; to help
the neophytes to "pump" their legs in order that their blood would circulate; to facilitate
a rest interval after every physical activity or "round"; to serve food and water; to tell
jokes; to coach the initiates; and to give them whatever they needed.
These rituals were performed with Lenny's consent. 2 3 1 A few days before the
"rites," he asked both his parents for permission to join the Aquila Fraternity. 2 3 2 His
father knew that Lenny would go through an initiation process and would be gone for
three days. 2 3 3 The CA found as follows: CETIDH
It is worth pointing out that the neophytes willingly and voluntarily

consented to undergo physical initiation and hazing . As can be gleaned
from the narration of facts, they voluntarily agreed to join the initiation rites to
become members of the Aquila Legis Fraternity. Prior to the initiation, they were
given brie ngs on what to expect . It is of common knowledge that before
admission in a fraternity, the neophytes will undergo a rite of passage. Thus, they
w e r e made aware that traditional methods such as mocking,
psychological tests and physical punishment would take place . They
knew that the initiation would involve beatings and other forms of
hazing . They were also told of their right and opportunity to quit at any
time they wanted to . In fact, prosecution witness Navera testi ed that accused
Tecson told him that "after a week, you can already play basketball." Prosecution
witness Marquez for his part, admitted that he knew that the initiates
would be hit "in the arms and legs," that a wooden paddle would be
used to hit them and that he expected bruises on his arms and legs . . . .
In d eed , there can be no fraternity initiation without consenting
neophytes . 2 3 4 (Emphasis supplied)
Even after going through Aquila's grueling traditional rituals during the rst day,
Lenny continued his participation and finished the second day of initiation.
Based on the foregoing contextual background, and absent further proof
showing clear malicious intent, we are constrained to rule that the speci c animus
iniuriandi was not present in this case. Even if the speci c acts of punching, kicking,
paddling, and other modes of in icting physical pain were done voluntarily, freely, and
with intelligence, thereby satisfying the elements of freedom and intelligence in the
felony of physical injuries, the fundamental ingredient of criminal intent was not proven
beyond reasonable doubt. On the contrary, all that was proven was that the acts were
done pursuant to tradition. Although the additional "rounds" on the second night were
held upon the insistence of Villareal and Dizon, the initiations were o cially reopened
with the consent of the head of the initiation rites; and the accused fraternity members
still participated in the rituals, including the paddling, which were performed pursuant to
tradition. Other than the paddle, no other "weapon" was used to in ict injuries on Lenny.
The targeted body parts were predominantly the legs and the arms. The designation of
roles, including the role of auxiliaries, which were assigned for the speci c purpose of
lending assistance to and taking care of the neophytes during the initiation rites, further
belied the presence of malicious intent. All those who wished to join the fraternity went
through the same process of "traditional" initiation; there is no proof that Lenny Villa
was speci cally targeted or given a different treatment. We stress that Congress itself
recognized that hazing is uniquely different from common crimes. 2 3 5 The totality of
the circumstances must therefore be taken into consideration.
The underlying context and motive in which the in iction of physical injuries was
rooted may also be determined by Lenny's continued participation in the initiation and
consent to the method used even after the rst day. The following discussion of the
framers of the 1995 Anti-Hazing Law is enlightening:
SENATOR GUINGONA. Most of these acts, if not all, are already punished
under the Revised Penal Code.
SENATOR LINA. That is correct, Mr. President.
SENATOR GUINGONA. If hazing is done at present and it results in death,
the charge would be murder or homicide.

SENATOR GUINGONA. If it does not result in death, it may be frustrated
homicide or serious physical injuries.

SENATOR GUINGONA. Or, if the person who commits sexual abuse does
so it can be penalized under rape or acts of lasciviousness.
SENATOR GUINGONA. So, what is the rationale for making a new offense
under this definition of the crime of hazing?
SENATOR LINA. To discourage persons or group of persons either

composing a sorority, fraternity or any association from making this requirement
of initiation that has already resulted in these speci c acts or results, Mr.
President.
That is the main rationale. We want to send a strong signal across the land
that no group or association can require the act of physical initiation before a
person can become a member without being held criminally liable.
xxx xxx xxx
SENATOR GUINGONA. Yes, but what would be the rationale for that
imposition? Because the distinguished Sponsor has said that he is not punishing
a mere organization, he is not seeking the punishment of an initiation into a club
or organization, he is seeking the punishment of certain acts that resulted in
death, et cetera as a result of hazing which are already covered crimes. AICHaS
The penalty is increased in one, because we would like to discourage

hazing, abusive hazing, but it may be a legitimate defense for invoking two or
more charges or offenses, because these very same acts are already punishable
under the Revised Penal Code.
That is my difficulty, Mr. President.
SENATOR LINA. . . .
Another point, Mr. President, is this, and this is a very telling difference:
When a person or group of persons resort to hazing as a requirement
for gaining entry into an organization, the intent to commit a wrong is
not visible or is not present , Mr. President. Whereas, in these speci c crimes,
Mr. President, let us say there is death or there is homicide, mutilation, if one
les a case, then the intention to commit a wrong has to be proven. But
if the crime of hazing is the basis, what is important is the result from
the act of hazing.
To me, that is the basic difference and that is what will prevent or deter
the sororities or fraternities; that they should really shun this activity called
"hazing." Because, initially, these fraternities or sororities do not even
consider having a neophyte killed or maimed or that acts of
lasciviousness are even committed initially , Mr. President.
So, what we want to discourage is the so-called initial innocent act . That
is why there is need to institute this kind of hazing. Ganiyan po ang nangyari. Ang
fraternity o ang sorority ay magre-recruit. Wala talaga silang intensiyong
makamatay. Hindi ko na babanggitin at buhay pa iyong kaso. Pero dito sa anim
o pito na namatay nitong nakaraang taon, walang intensiyong patayin talaga
iyong neophyte. So, kung maghihintay pa tayo, na saka lamang natin isasakdal
ng murder kung namatay na, ay after the fact ho iyon. Pero, kung sasabihin natin
sa mga kabataan na: "Huwag ninyong gagawin iyong hazing. Iyan ay kasalanan
at kung mamatay diyan, mataas ang penalty sa inyo."
xxx xxx xxx
SENATOR GUINGONA. I join the lofty motives, Mr. President, of the
distinguished Sponsor. But I am again disturbed by his statement that the
prosecution does not have to prove the intent that resulted in the death,
that resulted in the serious physical injuries, that resulted in the acts of
lasciviousness or deranged mind. We do not have to prove the willful intent
of the accused in proving or establishing the crime of hazing. This seems, to
me, a novel situation where we create the special crime without having
to go into the intent, which is one of the basic elements of any crime.
If there is no intent, there is no crime. If the intent were merely to

initiate, then there is no offense. And even the distinguished Sponsor
admits that the organization, the intent to initiate, the intent to have a
new society or a new club is, per se , not punishable at all. What are
punishable are the acts that lead to the result. But if these results are
not going to be proven by intent, but just because there was hazing, I
am afraid that it will disturb the basic concepts of the Revised Penal
Code, Mr. President.
SENATOR LINA. Mr. President, the act of hazing, precisely, is being
criminalized because in the context of what is happening in the
sororities and fraternities, when they conduct hazing, no one will admit
that their intention is to maim or to kill. So, we are already criminalizing the
fact of in icting physical pain. Mr. President, it is a criminal act and we want it
stopped, deterred, discouraged.
If that occurs, under this law, there is no necessity to prove that the
masters intended to kill or the masters intended to maim. What is important is the
result of the act of hazing. Otherwise, the masters or those who in ict the
physical pain can easily escape responsibility and say, "We did not
have the intention to kill. This is part of our initiation rites. This is
normal. We do not have any intention to kill or maim."
This is the lusot , Mr. President. They might as well have been
charged therefore with the ordinary crime of homicide, mutilation, et
cetera, where the prosecution will have a di culty proving the elements
if they are separate offenses.
xxx xxx xxx
SENATOR GUINGONA. Mr. President, assuming there was a group that

initiated and a person died. The charge is murder. My question is: Under this bill if
it becomes a law, would the prosecution have to prove conspiracy or not
anymore?
SENATOR LINA. Mr. President, if the person is present during hazing . . .
SENATOR GUINGONA. The persons are present. First, would the
prosecution have to prove conspiracy? Second, would the prosecution have to
prove intent to kill or not? CITcSH
SENATOR LINA. No more. As to the second question, Mr. President, if that

occurs, there is no need to prove intent to kill.
SENATOR GUINGONA. But the charge is murder.
SENATOR LINA. That is why I said that it should not be murder. It should
be hazing, Mr. President. 2 3 6 (Emphasis supplied)
During a discussion between Senator Biazon and Senator Lina on the issue of
whether to include sodomy as a punishable act under the Anti-Hazing Law, Senator Lina
further clarified thus:
SENATOR BIAZON. Mr. President, this Representation has no objection to
the inclusion of sodomy as one of the conditions resulting from hazing as
necessary to be punished. However, the act of sodomy can be committed by two
persons with or without consent.
To make it clearer, what is being punished here is the commission of

sodomy forced into another individual by another individual. I move, Mr.
President, that sodomy be modi ed by the phrase "without consent" for purposes
of this section.
SENATOR LINA. I am afraid, Mr. President, that if we qualify sodomy with
the concept that it is only going to aggravate the crime of hazing if it is done
without consent will change a lot of concepts here. Because the results from
hazing aggravate the offense with or without consent. In fact, when a
person joins a fraternity, sorority, or any association for that matter, it
can be with or without the consent of the intended victim. The fact that
a person joins a sorority or fraternity with his consent does not negate
the crime of hazing.
This is a proposed law intended to protect the citizens from the

malpractices that attend initiation which may have been announced with or
without physical in iction of pain or injury, Mr. President. Regardless of
whether there is announcement that there will be physical hazing or
whether there is none, and therefore, the neophyte is duped into joining
a fraternity is of no moment. What is important is that there is an
infliction of physical pain.
The bottom line of this law is that a citizen even has to be protected
from himself if he joins a fraternity, so that at a certain point in time, the State,
the individual, or the parents of the victim can run after the perpetrators
of the crime, regardless of whether or not there was consent on the part
of the victim.
xxx xxx xxx

SENATOR LINA. Mr. President, I understand the position taken by the
distinguished Gentleman from Cavite and Metro Manila. It is correct that society
sometimes adopts new mores, traditions, and practices.
In this bill, we are not going to encroach into the private proclivities of
some individuals when they do their acts in private as we do not take a peek into
the private rooms of couples. They can do their thing if they want to make love in
ways that are not considered acceptable by the mainstream of society. That is
not something that the State should prohibit.
But sodomy in this case is connected with hazing, Mr. President. Such that
the act may even be entered into with consent. It is not only sodomy. The
in iction of pain may be done with the consent of the neophyte. If the
law is passed, that does not make the act of hazing not punishable
because the neophyte accepted the infliction of pain upon himself.
If the victim suffers from serious physical injuries, but the
initiator said, "Well, he allowed it upon himself. He consented to it." So,
if we allow that reasoning that sodomy was done with the consent of
the victim, then we would not have passed any law at all. There will be
no signi cance if we pass this bill, because it will always be a defense
that the victim allowed the in iction of pain or suffering. He accepted it
as part of the initiation rites.
But precisely, Mr. President that is one thing that we would want to
prohibit. That the defense of consent will not apply because the very
act of in icting physical pain or psychological suffering is, by itself, a
punishable act. The result of the act of hazing, like death or physical injuries
merely aggravates the act with higher penalties. But the defense of consent is
not going to nullify the criminal nature of the act.
So, if we accept the amendment that sodomy can only aggravate the
offense if it is committed without consent of the victim, then the whole
foundation of this proposed law will collapse.
SENATOR BIAZON. Thank you, Mr. President.
SENATOR LINA. Thank you very much. cIaCTS
THE PRESIDENT. Is there any objection to the committee amendment?

(Silence.) The Chair hears none; the same is approved. 2 3 7 (Emphasis supplied)
Realizing the implication of removing the state's burden to prove intent, Senator
Lina, the principal author of the Senate Bill, said:
I am very happy that the distinguished Minority Leader brought out the
idea of intent or whether there it is mala in se or mala prohibita. There can be a
radical amendment if that is the point that he wants to go to.
If we agree on the concept, then, maybe, we can just make this a
special law on hazing. We will not include this anymore under the
Revised Penal Code. That is a possibility. I will not foreclose that
suggestion, Mr. President. 2 3 8 (Emphasis supplied)
Thus, having in mind the potential con ict between the proposed law and the
core principle of mala in se adhered to under the Revised Penal Code, Congress did not
simply enact an amendment thereto. Instead, it created a special law on hazing,
founded upon the principle of mala prohibita. This dilemma faced by Congress is
further proof of how the nature of hazing — unique as against typical crimes — cast a
cloud of doubt on whether society considered the act as an inherently wrong conduct
o r mala in se at the time. It is safe to presume that Lenny's parents would not have
consented 2 3 9 to his participation in Aquila Fraternity's initiation rites if the practice of
hazing were considered by them as mala in se.
Furthermore, in Vedaña v. Valencia (1998), we noted through Associate Justice
(now retired Chief Justice) Hilario Davide that "in our nation's very recent history, the
people have spoken, through Congress, to deem conduct constitutive of . . . hazing ,
[an] act[] previously considered harmless by custom , as criminal." 2 4 0 Although it
may be regarded as a simple obiter dictum, the statement nonetheless shows
recognition that hazing — or the conduct of initiation rites through physical and/or
psychological suffering — has not been traditionally criminalized. Prior to the 1995 Anti-
Hazing Law, there was to some extent a lacuna in the law; hazing was not clearly
considered an intentional felony. And when there is doubt on the interpretation of
criminal laws, all must be resolved in favor of the accused. In dubio pro reo.
For the foregoing reasons, and as a matter of law, the Court is constrained to rule
against the trial court's nding of malicious intent to in ict physical injuries on Lenny
Villa, there being no proof beyond reasonable doubt of the existence of malicious intent
to in ict physical injuries or animus iniuriandi as required in mala in se cases,
considering the contextual background of his death, the unique nature of hazing, and
absent a law prohibiting hazing.
The accused fraternity members guilty of reckless imprudence resulting in
homicide
The absence of malicious intent does not automatically mean, however, that the
accused fraternity members are ultimately devoid of criminal liability. The Revised
Penal Code also punishes felonies that are committed by means of fault (culpa).
According to Article 3 thereof, there is fault when the wrongful act results from
imprudence, negligence, lack of foresight, or lack of skill.
Reckless imprudence or negligence consists of a voluntary act done without
malice, from which an immediate personal harm, injury or material damage results by
reason of an inexcusable lack of precaution or advertence on the part of the person
committing it. 2 4 1 In this case, the danger is visible and consciously appreciated by the
actor. 2 4 2 In contrast, simple imprudence or negligence comprises an act done without
grave fault, from which an injury or material damage ensues by reason of a mere lack of
foresight or skill. 2 4 3 Here, the threatened harm is not immediate, and the danger is not
openly visible. 2 4 4
The test 2 4 5 for determining whether or not a person is negligent in doing an act
is as follows: Would a prudent man in the position of the person to whom negligence is
attributed foresee harm to the person injured as a reasonable consequence of the
course about to be pursued? If so, the law imposes on the doer the duty to take
precaution against the mischievous results of the act. Failure to do so constitutes
negligence. 2 4 6
As we held in Gaid v. People , for a person to avoid being charged with
recklessness, the degree of precaution and diligence required varies with the degree of
the danger involved. 2 4 7 If, on account of a certain line of conduct, the danger of
causing harm to another person is great, the individual who chooses to follow that
particular course of conduct is bound to be very careful, in order to prevent or avoid
damage or injury. 2 4 8 In contrast, if the danger is minor, not much care is required. 2 4 9 It
is thus possible that there are countless degrees of precaution or diligence that may be
required of an individual, "from a transitory glance of care to the most vigilant effort."
2 5 0 The duty of the person to employ more or less degree of care will depend upon the
circumstances of each particular case. 2 5 1
There was patent recklessness in the hazing of Lenny Villa. SHDAEC

According to the NBI medico-legal o cer, Lenny died of cardiac failure
secondary to multiple traumatic injuries. 2 5 2 The o cer explained that cardiac failure
refers to the failure of the heart to work as a pump and as part of the circulatory
system due to the lack of blood. 2 5 3 In the present case, the victim's heart could no
longer work as a pumping organ, because it was deprived of its requisite blood and
oxygen. 2 5 4 The deprivation was due to the "channeling" of the blood supply from the
entire circulatory system — including the heart, arteries, veins, venules, and capillaries —
to the thigh, leg, and arm areas of Lenny, thus causing the formation of multiple
hematomas or blood clots. 2 5 5 The multiple hematomas were wide, thick, and deep, 2 5 6
indicating that these could have resulted mainly from injuries sustained by the victim
from st blows, knee blows, paddles, or the like. 2 5 7 Repeated blows to those areas
caused the blood to gradually ooze out of the capillaries until the circulating blood
became so markedly diminished as to produce death. 2 5 8 The o cer also found that
the brain, liver, kidney, pancreas, intestines, and all other organs seen in the abdominals,
as well as the thoracic organ in the lungs, were pale due to the lack of blood, which was
redirected to the thighs and forearms. 2 5 9 It was concluded that there was nothing in
the heart that would indicate that the victim suffered from a previous cardiac arrest or
disease. 2 6 0
The multiple hematomas or bruises found in Lenny Villa's arms and thighs,
resulting from repeated blows to those areas, caused the loss of blood from his vital
organs and led to his eventual death. These hematomas must be taken in the light of
the hazing activities performed on him by the Aquila Fraternity. According to the
testimonies of the co-neophytes of Lenny, they were punched, kicked, elbowed, kneed,
stamped on; and hit with different objects on their arms, legs, and thighs. 2 6 1 They were
also "paddled" at the back of their thighs or legs; 2 6 2 and slapped on their faces. 2 6 3
They were made to play rough basketball. 2 6 4 Witness Marquez testi ed on Lenny,
saying: "[T]inamaan daw sya sa spine." 2 6 5 The NBI medico-legal o cer explained that
the death of the victim was the cumulative effect of the multiple injuries suffered by the
latter. 2 6 6 The relevant portion of the testimony is as follows:
Atty. Tadiar
Doctor, there was, rather, it was your testimony on various cross

examinations of defense counsels that the injuries that you have
enumerated on the body of the deceased Lenny Villa previously marked as
Exhibit "G-1" to "G-14" individually by themselves would not cause the
death of the victim. The question I am going to propound to you is what is
the cumulative effect of all of these injuries marked from Exhibit "G-1" to
"G-14"?
Witness
All together nothing in concert to cause to the demise of the victim. So, it is
not fair for us to isolate such injuries here because we are talking of the
whole body. At the same manner that as a car would not run minus one (1)
wheel. No, the more humane in human approach is to interpret all those
injuries in whole and not in part. 2 6 7
There is also evidence to show that some of the accused fraternity members
were drinking during the initiation rites. 2 6 8
Consequently, the collective acts of the fraternity members were tantamount to
recklessness, which made the resulting death of Lenny a culpable felony. It must be
remembered that organizations owe to their initiates a duty of care not to cause them
injury in the process. 2 6 9 With the foregoing facts, we rule that the accused are guilty of
reckless imprudence resulting in homicide. Since the NBI medico-legal o cer found
that the victim's death was the cumulative effect of the injuries suffered, criminal
responsibility redounds to all those who directly participated in and contributed to the
infliction of physical injuries.
It appears from the aforementioned facts that the incident may have been
prevented, or at least mitigated, had the alumni of Aquila Fraternity — accused Dizon
and Villareal — restrained themselves from insisting on reopening the initiation rites.
Although this point did not matter in the end, as records would show that the other
fraternity members participated in the reopened initiation rites — having in mind the
concept of "seniority" in fraternities — the implication of the presence of alumni should
be seen as a point of review in future legislation. We further note that some of the
fraternity members were intoxicated during Lenny's initiation rites. In this light, the
Court submits to Congress, for legislative consideration, the amendment of the Anti-
Hazing Law to include the fact of intoxication and the presence of non-resident or
alumni fraternity members during hazing as aggravating circumstances that would
increase the applicable penalties.
It is truly astonishing how men would wittingly — or unwittingly — impose the
misery of hazing and employ appalling rituals in the name of brotherhood. There must
be a better way to establish "kinship." A neophyte admitted that he joined the fraternity
to have more friends and to avail himself of the bene ts it offered, such as tips during
bar examinations. 2 7 0 Another initiate did not give up, because he feared being looked
down upon as a quitter, and because he felt he did not have a choice. 2 7 1 Thus, for
Lenny Villa and the other neophytes, joining the Aquila Fraternity entailed a leap in the
dark. By giving consent under the circumstances, they left their fates in the hands of the
fraternity members. Unfortunately, the hands to which lives were entrusted were
barbaric as they were reckless. IHAcCS
Our nding of criminal liability for the felony of reckless imprudence resulting in
homicide shall cover only accused Tecson, Ama, Almeda, Bantug, and Dizon. Had the
Anti-Hazing Law been in effect then, these ve accused fraternity members would have
all been convicted of the crime of hazing punishable by reclusion perpetua (life
imprisonment). 2 7 2 Since there was no law prohibiting the act of hazing when Lenny
died, we are constrained to rule according to existing laws at the time of his death. The
CA found that the prosecution failed to prove, beyond reasonable doubt, Victorino et
al.'s individual participation in the in iction of physical injuries upon Lenny Villa. 2 7 3 As
to accused Villareal, his criminal liability was totally extinguished by the fact of his
death, pursuant to Article 89 of the Revised Penal Code.
Furthermore, our ruling herein shall be interpreted without prejudice to the
applicability of the Anti-Hazing Law to subsequent cases. Furthermore, the modification
of criminal liability from slight physical injuries to reckless imprudence resulting
in homicide shall apply only with respect to accused Almeda, Ama, Bantug, and
Tecson.
The accused liable to pay damages
The CA awarded damages in favor of the heirs of Lenny Villa in the amounts of
P50,000 as civil indemnity ex delicto and P1,000,000 as moral damages, to be jointly
and severally paid by accused Dizon and Villareal. It also awarded the amount of
P30,000 as indemnity to be jointly and severally paid by accused Almeda, Ama, Bantug,
and Tecson.
Civil indemnity ex delicto is automatically awarded for the sole fact of death of
the victim. 2 7 4 In accordance with prevailing jurisprudence, 2 7 5 we sustain the CA's
award of indemnity in the amount of P50,000.
The heirs of the victim are entitled to actual or compensatory damages, including
expenses incurred in connection with the death of the victim, so long as the claim is
supported by tangible documents. 2 7 6 Though we are prepared to award actual
damages, the Court is prevented from granting them, since the records are bereft of
any evidence to show that actual expenses were incurred or proven during trial.
Furthermore, in the appeal, the Solicitor General does not interpose any claim for actual
damages. 2 7 7
The heirs of the deceased may recover moral damages for the grief suffered on
account of the victim's death. 2 7 8 This penalty is pursuant to Article 2206 (3) of the Civil
Code, which provides that the "spouse, legitimate and illegitimate descendants and the
ascendants of the deceased may demand moral damages for mental anguish by
reason of the death of the deceased." 2 7 9 Thus, we hereby we a rm the CA's award of
moral damages in the amount of P1,000,000.
WHEREFORE , the appealed Judgment in G.R. No. 155101 nding petitioner
Fidelito Dizon guilty of homicide is hereby MODIFIED and SET ASIDE IN PART . The
appealed Judgment in G.R. No. 154954 — nding Antonio Mariano Almeda, Junel
Anthony Ama, Renato Bantug, Jr., and Vincent Tecson guilty of the crime of slight
physical injuries — is also MODIFIED and SET ASIDE IN PART . Instead, Fidelito Dizon,
Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson
are found GUILTY beyond reasonable doubt of reckless imprudence resulting in
homicide de ned and penalized under Article 365 in relation to Article 249 of the
Revised Penal Code. They are hereby sentenced to suffer an indeterminate prison term
of four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years and
two (2) months of prision correccional, as maximum. In addition, accused are ORDERED
jointly and severally to pay the heirs of Lenny Villa civil indemnity ex delicto in the
amount of P50,000, and moral damages in the amount of P1,000,000, plus legal
interest on all damages awarded at the rate of 12% from the date of the nality of this
Decision until satisfaction. 2 8 0 Costs de oficio.
The appealed Judgment in G.R. No. 154954, acquitting Victorino et al., is hereby
AFFIRMED . The appealed Judgments in G.R. Nos. 178057 & 178080, dismissing the
criminal case led against Escalona, Ramos, Saruca, and Adriano, are likewise
AFFIRMED . Finally, pursuant to Article 89 (1) of the Revised Penal Code, the Petition in
G.R. No. 151258 is hereby dismissed, and the criminal case against Artemio Villareal
deemed CLOSED and TERMINATED .
Let copies of this Decision be furnished to the Senate President and the Speaker
of the House of Representatives for possible consideration of the amendment of the
Anti-Hazing Law to include the fact of intoxication and the presence of non-resident or
alumni fraternity members during hazing as aggravating circumstances that would
increase the applicable penalties. IHEAcC
SO ORDERED.
Carpio, Brion, Perez and Reyes, JJ., concur.
Footnotes
1.Sponsorship Speech of former Senator Joey Lina, Senate Transcript of Session Proceedings
No. 34 (08 October 1992) 9th Congress, 1st Regular Sess. at 21-22 [hereinafter Senate
TSP No. 34].
2.Id.
3.Senate Transcript of Session Proceedings No. 47 (10 November 1992) 9th Congress, 1st
Regular Sess. at 20-21, 24-27 [hereinafter Senate TSP No. 47].
4.Id.; Senate Transcript of Session Proceedings No. 62 (14 December 1992) 9th Congress, 1st
Regular Sess. at 15 [hereinafter Senate TSP No. 62].
5.Senate TSP No. 34, supra note 1.
6.Id.
7.U.S. v. Taylor, 28 Phil. 599 (1914). The Court declared, "In the Philippine Islands there exist no
crimes such as are known in the United States and England as common law crimes;" id.
at 604.
8.CA Decision (People v. Dizon , CA-G.R. CR No. 15520), pp. 1-5; rollo (G.R. No. 151258), pp. 62-
66.
9.RTC Decision [ People v. Dizon , Criminal Case No. C-38340(91)], pp. 1-57; rollo (G.R. No.
151258), pp. 109-167.
10.As explained in the Petition for Review of Villareal, "resident brods" are those fraternity
members who are currently students of the Ateneo Law School, while "alumni brods" are
those fraternity members who are graduates or former students of the law school; see
Villareal's Petition for Review ( Villareal v. People , G.R. No. 151258), pp. 5-7; rollo (G.R.
No. 151258), pp. 17-19.
11.RTC Decision [Crim. Case No. C-38340(91)], p. 2, supra note 9; rollo, p. 110.
12.Id.
13.Id. at 66-67; rollo, pp. 175-176.

14.CA Decision (Escalona v. RTC, CA-G.R. SP No. 89060), p. 4; rollo (G.R. No. 178057), p. 131.
15.Penned by Associate Justice Eubulo G. Verzola and concurred in by Associate Justices
Rodrigo V. Cosico and Eliezer R. de los Santos (with Concurring Opinion).
16.RTC Decision ( People v. Dizon , Crim. Case No. 38340), p. 21; rollo (G.R. No. 178057), p.
1114.
17.CA Decision (Escalona v. RTC), pp. 12-14, supra note 14; rollo, pp. 139-141.
18.Penned by Associate Justice Mari or P. Punzalan Castillo and concurred in by Associate
Justices Andres B. Reyes, Jr. and Hakim S. Abdulwahid.
20.Villareal's Petition for Review (Villareal v. People, G.R. No. 151258), p. 13; rollo, p. 25.
21.Dizon's Petition for Review (Dizon v. People, G.R. No. 155101), p. 1; rollo, p. 3.
22.Id. at 17; rollo, p. 19.
23.Id. at 10; rollo, p. 12.

24.Id. at 22; rollo, p. 24.
25.Id. at 23; rollo, p. 25.
26.Id. at 23-24; rollo, pp. 25-26.

27.Id. at 26; rollo, p. 28.
28.People's Petition for Certiorari (People v. CA, G.R. No. 154954), p. 2; rollo, p. 13.
29.Id. at 167; rollo, p. 118.

30.Villa's Petition for Review on Certiorari (Villa v. Escalona , G.R. Nos. 178057 and 178080), p.
1; rollo, p. 84.
31.Petralba v. Sandiganbayan, G.R. No. 81337, 16 August 1991, 200 SCRA 644.
32.People v. Badeo , G.R. No. 72990, 21 November 1991, 204 SCRA 122, citing J. Aquino's
Concurring Opinion in People v. Satorre , G.R. No. L-26282, August 27, 1976, 72 SCRA
439.
33.People v. Bayotas, G.R. No. 102007, 2 September 1994, 236 SCRA 239; People v. Bunay , G.R.
No. 171268, 14 September 2010, 630 SCRA 445.
34.People v. Bunay , supra, citing People v. Bayotas, supra.
35.CA Decision (People v. Dizon), p. 7, supra note 8; rollo, p. 68.
36.Id.
37.Id.
38.Id.
39.Id. at 7-8; rollo, pp. 68-69.
40.Id. at 8; rollo, p. 69.

41.Id.
42.People v. Banihit, 393 Phil. 465 (2000); People v. Hernandez , 328 Phil. 1123 (1996), citing
People v. Dichoso, 96 SCRA 957 (1980); and People v. Angco, 103 Phil. 33 (1958).
43.People v. Hapa, 413 Phil. 679 (2001), citing People v. Diaz, 311 SCRA 585 (1999).
44.People v. Hapa, supra, citing Parada v. Veneracion, 336 Phil. 354, 360 (1997).
45.Crisostomo v. Sandiganbayan, 495 Phil. 718 (2005).
46.Id.
47.People v. Bodoso, 446 Phil. 838 (2003).
48.Id.
49.Dizon's Petition for Review, supra note 21 at 20; rollo, p. 22.
50.Id. at 23; rollo, p. 25.
51.Villa's Petition for Review on Certiorari, supra note 30 at 19; rollo, p. 102.
52.People v. Hernandez, G.R. Nos. 154218 & 154372, 28 August 2006, 499 SCRA 688.
53.People v. Tampal, 314 Phil. 35 (1995), citing Gonzales v. Sandiganbayan , 199 SCRA 298
(1991); Acebedo v. Sarmiento, 146 Phil. 820 (1970).
54.People v. Tampal, supra; Acebedo v. Sarmiento, supra.
55.People v. Tampal, supra.
56.Id.
57.Id.
58.People v. Hernandez, supra note 52, citing People v. Tampal, supra; Philippine Savings Bank
v. Spouses Bermoy , 471 SCRA 94, 107 (2005); People v. Bans , 239 SCRA 48 (1994);
People v. Declaro, 170 SCRA 142 (1989); and People v. Quizada, 160 SCRA 516 (1988).
59.See People v. Hernandez, supra note 52.
60.Id.
61.Id.
62.Id.
64.Id. at 4; rollo, p. 131.
65.Id.
66.Id.
67.Abardo v. Sandiganbayan, 407 Phil. 985 (2001).
68.Id.
69.Melo v. People, 85 Phil. 766 (1950).
70.Id.
71.Id.
72.Id.
73.People v. Nazareno, G.R. No. 168982, 5 August 2009, 595 SCRA 438.
74.Id.; People v. Maquiling, 368 Phil. 169 (1999).
75.People v. Velasco , 394 Phil. 517 (2000), citing Rules on Criminal Procedure, Rule 117, Sec 7;
Paulin v. Gimenez , G. R. No. 103323, 21 January 1993, 217 SCRA 386; Comelec v. Court
of Appeals, G. R. No. 108120, 26 January 1994, 229 SCRA 501; People v. Maquiling ,
supra note 74.
76.People v. Court of Appeals and Galicia , G.R. No. 159261, 21 February 2007, 516 SCRA 383,
397, citing People v. Serrano, 315 SCRA 686, 689 (1999).
77.People v. Court of Appeals and Galicia , supra, citing People v. Velasco , 340 SCRA 207, 240
(2000).
78.Galman v. Sandiganbayan , 228 Phil. 42 (1986), citing People v. Bocar , 138 SCRA 166
(1985); Combate v. San Jose , 135 SCRA 693 (1985); People v. Catolico , 38 SCRA 389
(1971); and People v. Navarro, 63 SCRA 264 (1975).
79.People v. Court of Appeals and Galicia, supra note 76 [citing People v. Tria-Tirona, 463 SCRA
462, 469-470 (2005); and People v. Velasco , 340 SCRA 207 (2000)]; People v. Court of
Appeals and Francisco, 468 Phil. 1 (2004); Galman v. Sandiganbayan , supra, citing
People v. Bocar, supra.
80.People v. Court of Appeals and Galicia , supra note 76, citing People v. Serrano , supra note
76 at 690; People v. De Grano, G.R. No. 167710, 5 June 2009, 588 SCRA 550.
81.People v. Nazareno , supra note 73; De Vera v. De Vera , G.R. No. 172832, 7 April 2009, 584
SCRA 506.
82.People v. Nazareno, supra note 73; De Vera v. De Vera, supra.

83.People v. De Grano, supra note 80, citing People v. Maquiling, supra note 74 at 704.
84.Id.
85.People's Petition for Certiorari, p. 8, supra note 28; rollo, p. 19.
86.Id. at 80-81; rollo, pp. 91-92.
87.Id. at 82-86; rollo, pp. 93-97.
88.See Francisco v. Desierto , G.R. No. 154117, 2 October 2009, 602 SCRA 50, citing First
Corporation v. Court of Appeals, G.R. No. 171989, 4 July 2007, 526 SCRA 564, 578.
89.People v. Maquiling , supra note 74, citing Teknika Skills and Trade Services v. Secretary of
Labor and Employment, 273 SCRA 10 (1997).
90.People v. Maquiling , supra note 74, citing Medina v. City Sheriff of Manila , 276 SCRA 133,
(1997); Jamer v. National Labor Relations Commission , 278 SCRA 632 (1997); and
Azores v. Securities and Exchange Commission, 252 SCRA 387 (1996).
91.De Vera v. De Vera , supra note 81; People v. Dela Torre , 430 Phil. 420 (2002); People v.
Leones, 418 Phil. 804 (2001); People v. Ruiz, 171 Phil. 400 (1978); People v. Pomeroy, 97
Phil. 927 (1955), citing People v. Ang Cho Kio, 95 Phil. 475 (1954).
92.See generally People v. Court of Appeals and Galicia , supra note 76; and People v. Court of
Appeals and Francisco, supra note 79.
93.CA Decision (People v. Dizon), pp. 21-22, supra note 8; rollo, pp. 82-83.
94.People v. Penesa, 81 Phil. 398 (1948).

96.People v. Penesa, supra note 94.
97.Id.
98.Id.
100.Id. at 21; rollo, p. 82.

101.Id.
102.See footnote 1 of Corpus v. Paje, 139 Phil. 429 (1969).
104.Id. at 58; rollo, p. 167.
105.RAMON C. AQUINO, THE REVISED PENAL CODE — VOLUME ONE 3 (1961); see People v.
Estrada, 389 Phil. 216 (2000); People v. Sandiganbayan, 341 Phil. 503 (1997).
106.VICENTE J. FRANCISCO, THE REVISED PENAL CODE: ANNOTATED AND COMMENTED —
BOOK ONE 4 (3rd ed. 1958); see People v. Estrada, supra.
107.FRANCISCO, supra at 4; People v. Estrada, supra.
108.AQUINO, supra note 105 at 3.
109.Id.
110.GUILLERMO B. GUEVARA, PENAL SCIENCES AND PHILIPPINE CRIMINAL LAW 6 (1974).
111.People v. Sandiganbayan, 341 Phil. 503 (1997).
112.FRANCISCO, supra note 106 at 33.
113.Id. at 33-34.
114.MARIANO A. ALBERT, THE REVISED PENAL CODE (ACT NO. 3815) 21-24 (1946).
115.Id. at 21.
116.Id. at 21.
117.Guevarra v. Almodovar, 251 Phil. 427 (1989), citing 46 CJS Intent 1103.
118.BLACK'S LAW DICTIONARY 670 (8th abr. ed. 2005); see People v. Regato , 212 Phil. 268
(1984).
119.Guevarra v. Almodovar, supra note 117.
120.ALBERT, supra note 114 at 23.
121.People v. Ballesteros , 349 Phil. 366 (1998); Bagajo v. Marave , 176 Phil. 20 (1978), citing
People v. Molineux, 168 N.Y. 264, 297; 61 N.E. 286, 296; 62 L.R.A. 193.
122.BLACK'S LAW DICTIONARY, supra note 118 at 520.
123.See FRANCISCO, supra note 106 at 34; ALBERT, supra note 114 at 23-25.
124.U.S. v. Catolico, 18 Phil. 504 (1911); U.S. v. Ah Chong, 15 Phil. 488 (1910).
125.U.S. v. Barnes , 8 Phil. 59 (1907); Dado v. People , 440 Phil. 521 (2002), citing Mondragon v.
People, 17 SCRA 476, 481 (1966); People v. Villanueva, 51 Phil. 488 (1928); U.S. v. Reyes,
30 Phil. 551 (1915); U.S. v. Mendoza , 38 Phil. 691 (1918); People v. Montes , 53 Phil. 323
(1929); People v. Pacusbas, 64 Phil. 614 (1937); and People v. Penesa, supra note 94.
126.People v. Fallorina , 468 Phil. 816 (2004), citing People v. Oanis , 74 Phil. 257 (1943);
FRANCISCO, supra note 106 at 51-52, citing People v. Sara, 55 Phil. 939 (1931).
127.See generally FRANCISCO, supra note 106 at 51.

128.Id. at 52; People v. Oanis , 74 Phil. 257 (1943), citing People v. Nanquil, 43 Phil. 232 (1922);
People v. Bindoy, 56 Phil. 15 (1931).
129.Mahawan v. People , G.R. No. 176609, 18 December 2008, 574 SCRA 737, citing Rivera v.
People, G.R. No. 166326, 25 January 2006, 480 SCRA 188, 196-197.
130.People v. Quijada, 328 Phil. 505 (1996).
131.Mahawan v. People, supra note 129, citing Rivera v. People, supra note 129.
132.Dado v. People, supra note 125.
133.People v. Delim , 444 Phil. 430, 450 (2003), citing WHARTON, CRIMINAL LAW — VOL. 1,
473-474 (12th ED., 1932).
134.See People v. Garcia , 467 Phil. 1102 (2004), citing People v. Carmen , G.R. No. 137268, 26
March 2001, 355 SCRA 267; U.S. v. Tayongtong, 21 Phil. 476 (1912); see generally U.S. v.
Maleza, 14 Phil. 468 (1909).
135.A. Catherine Kendrick, Ex Parte Barran: In Search of Standard Legislation for Fraternity
Hazing Liability, 24 AM. J. TRIAL ADVOC. 407 (2000)
136.Id.
137.In re Khalil H., No. 08110, 2010 WL 4540458 (N.Y. App. Div. Nov. 9, 2010) (U.S.) [ citing
Kuzmich, Comment, In Vino Mortuus: Fraternal Hazing and Alcohol-Related Deaths, 31
MCGEORGE L REV. 1087, 1088-1089 (2000); and SYMPOSIUM, THE WORKS OF PLATO
(THE MODERN LIBRARY 1956)]; Gregory E. Rutledge, Hell Night Hath No Fury Like a
Pledge Scorned . . . and Injured: Hazing Litigation in U.S. Colleges and Universities, 25
J.C. & U.L. 361, 368-9 (1998); Kendrick, 24 AM. J. TRIAL ADVOC.
138.In re Khalil H., supra; Rutledge, supra.
139.Jamie Ball, This Will Go Down on Your Permanent Record (But We'll Never Tell): How the
Federal Educational Rights and Privacy Act May Help Colleges and Universities Keep
Hazing a Secret, 33 SW. U. L. REV. 477, 480 (2004), citing Rutledge, supra.
140.Id.
141.Id.
142.Kendrick, supra note 135, citing Scott Patrick McBride, Comment, Freedom of Association
in the Public University Setting: How Broad is the Right to Freely Participate in Greek
Life? , 23 U. DAYTON L. REV. 133, 147-8 (1997).
143.Id.
144.Id.
145.Id., citing Ex parte Barran, 730 So.2d 203 (Ala. 1998) (U.S.).
146.See generally Sec. 1, Republic Act No. 8049 (1995), otherwise known as the Anti-Hazing
Law.
147.Id.
148.In re Khalil H., supra note 137, citing WEBSTER'S THIRD INTERNATIONAL DICTIONARY,
1041 (1986); and People v. Lenti, 44 Misc.2d 118, 253 N.Y.S.2d 9 (N.Y. Nassau County
Ct. 1964) (U.S.).
149.See generally Republic Act No. 8049 (1995), Sec. 1, otherwise known as the Anti-Hazing
Law; Susan Lipkins, Hazing: De ning and Understanding Psychological Damages , 2
ANN.2007 AAJ-CLE 2481 (2007).
150.REYNALDO C. ILETO, THE DIORAMA EXPERIENCE: A VISUAL HISTORY OF THE
PHILIPPINES 84 (2004).
151.Id.
152.Id.
153.Id.; see Philippine Insurrection Records, Reel 31, Folder 514/10 — Cartilla del Katipunan,
quoted in LUIS CAMARA DERY, ALAY SA INANG BAYAN: PANIBAGONG PAGBIBIGAY
KAHULUGAN SA KASAYSAYAN NG HIMAGSIKAN NG 1896, 16-24 (1999).
154.Philippine Insurrection Records, supra, quoted in DERY, supra at 17.
155.Philippine Insurrection Records, supra, quoted in DERY, supra at 18.
156.ILETO, supra note 150.
157.STEPHEN E. AMBROSE, DUTY, HONOR, COUNTRY: A HISTORY OF WEST POINT 222
(1999).
158.Id.
159.Easler v. Hejaz Temple of Greenville , 285 S.C. 348, 329 S.E.2d 753 (S.C. 1985) (U.S.). (The
South Carolina Supreme Court held, inter alia, that (1) evidence supported the jury
nding that the manner in which the association carried out "mattress-rotating barrel
trick," a hazing event, was hazardous and constituted actionable negligence; and (2) the
candidate was not barred from recovery by the doctrine of assumption of risk. Id.)
160.Id.
161.Id.
162.Id.
163.CNN U.S., Pentagon Brass Disgusted by Marine Hazing Ceremony , January 31, 1997,
available at<http://articles.cnn.com/1997-01-31/us/9701_31_hazing_1_hazing-incident-
camp-lejeune-marines?_s=PM:US> (visited 3 December 2010); see also Gregory E.
Rutledge, Hell Night Hath No Fury Like a Pledge Scorned . . . and Injured: Hazing
Litigation in U.S. Colleges and Universities, 25 J.C. & U.L. 361, 364 (1998).
164.CNN U.S., supra; see also Rutledge, supra.
165.State v. Allen, 905 S.W.2d 874, 875 (Mo. 1995) (U.S.). (One of the pledges — Michael Davis
— blacked out and never regained consciousness. He died the following afternoon. The
Supreme Court of Missouri affirmed the trial court's conviction of hazing. Id.)
166.Id.
167.Id.
168.Ex parte Barran, 730 So.2d 203 (Ala. 1998) (U.S.). (The Alabama Supreme Court ruled that
the (1) pledge knew and appreciated the risks inherent in hazing; and (2) pledge
voluntarily exposed himself to hazing, supporting the fraternity's assumption of the risk
defense. Consequently, the Court reversed the judgment of the Court of Civil Appeals and
reinstated the ruling of the trial court, which entered the summary judgment in favor of
the defendants with respect to the victim's negligence claims. The case was remanded
as to the other matters. Id.)
169.Id.
170.Lloyd v. Alpha Phi Alpha Fraternity , No. 96-CV-348, 97-CV-565, 1999 WL 47153 (Dist. Ct.,
N.D. N.Y., 1999) (U.S.). (The plaintiff led a law suit against Cornell University for the
latter's liability resulting from the injuries the former sustained during the alleged hazing
by the fraternity. The New York district court granted defendant Cornell's motion to
dismiss the plaintiff's complaint. Id.)
171.Id.
172.Kenner v. Kappa Alpha Psi Fraternity, Inc. , 808 A.2d 178 (Pa. Super.Ct. 2002). (The
Pennsylvania Superior Court held that: (1) the fraternity owed the duty to protect the
initiate from harm; (2) breach of duty by fraternity was not established; (3) individual
fraternity members owed the duty to protect the initiate from harm; and (4) the evidence
raised the genuine issue of material fact as to whether the fraternity's chapter advisor
breached the duty of care to initiate. Id.)
173.Id.
174.Morton v. State , 988 So.2d 698 (Flo. Dist. Ct. App. 2008) (U.S.). (The District Court of
Appeal of Florida reversed the conviction for felony hazing and remanded the case for a
new trial because of erroneous jury instruction. Id.)
175.Id.
176.Id.
177.Id.
178.Id.
179.Id.
180.Rutledge, supra note 137.
181.Rutledge, supra note 137, citing Fraternity Hazing: Is that Anyway to Treat a Brother? ,
TRIAL, September 1991, at 63.
182.Rutledge, supra note 137, [citing Robert D. Bickel & Peter F. Lake, Reconceptualizing the
University's Duty to Provide A Safe Learning Environment: A Criticism of the Doctrine of
In Loco Parentis and the Restatement (Second) of Torts , 20 J.C. & U.L. 261 (1994);
Jennifer L. Spaziano, It's All Fun and Games Until Someone Loses an Eye: An Analysis
of University Liability for Actions of Student Organizations, 22 PEPP. L. REV. 213 (1994);
Fraternity Hazing: Is that Anyway to Treat a Brother? , TRIAL, Sept. 1991, at 63; and Byron
L. Le ore, Jr., Alcohol and Hazing Risks in College Fraternities: Re-evaluating Vicarious
and Custodial Liability of National Fraternities, 7 REV. LITIG. 191, 210 (1988)].
183.Darryll M. Halcomb Lewis, The Criminalization of Fraternity, Non-Fraternity and Non-
Collegiate Hazing, 61 MISS. L.J. 111, 117 (1991), citing Benjamin, The Trouble at the
Naval Academy, 60 The Independent 154, 155 (1906). According to Lewis, the 1874
statute outlawing hazing was directed specifically at the United States Naval Academy.
184.Gregory L. Acquaviva, Protecting Students from the Wrongs of Hazing Rites: A Proposal for
Strengthening New Jersey's Anti-Hazing Act, 26 QUINNIPIAC L. REV. 305, 311 (2008),
citing Lewis, supra note 183 at 118.
185.Acquaviva, supra, citing Lewis, supra note 183 at 118-119.
186.Acquaviva, supra, citing Lewis, supra note 183 at 119.
187.Acquaviva, supra at 313.
188.Amie Pelletier, Note, Regulation of Rites: The Effect and Enforcement of Current Anti-
Hazing Statutes, 28 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 377, 377 (2002).
189.Id.
190.Id., citing 720 Ill. Comp. Stat. Ann. 120/10 (1992) (U.S.).
191.730 ILCS 5/5-8-2 (West, Westlaw through P.A. 96-1482 of the 2010 Sess.) (U.S.).
192.Pelletier, supra note 188, citing Ind. Code Ann. Â§ 35-42-2-2 (U.S.).
193.Pelletier, supra note 188, citing Ind. Code Ann. Â§ 35-42-2-2 (U.S.).
194.Ind. Code Ann. Â§ 35-42-2-2 (West, Westlaw through 2010 Sess.) (U.S.) citing State v.
Lewis, 883 N.E.2d 847 (Ind. App. 2008) (U.S.).
195.Ind. Code Ann. Â§ 35-50-2-6 (West, Westlaw through 2010 Sess.) (U.S.).
196.Pelletier, supra note 188, citing Mo. Rev. Stat. Â§ 578.365 (2001) (U.S.).
197.Mo. Stat. Ann. Â§ 558.011 (West, Westlaw through 2010 First Extraordinary Gen. Ass.
Sess.).
198.Pelletier, supra note 188, citing Tex. Educ. Code Ann. Â§ 37.152 (Vernon 1996) (U.S.).
199.Tex. Stat. Code Ann., Penal Code Â§ 12.35 (Vernon, Westlaw through 2009 Legis. Sess.)
(U.S.).
200.Pelletier, supra note 188, citing Utah Code Ann. Â§ 76-5-107.5 (1999) (U.S.).
201.Utah Code Ann. 1953 Â§ 76-3-203 (Westlaw through 2010 Gen. Sess.) (U.S.).
202.Pelletier, supra note 188, citing W. Va. Code Â§ 18-16-3 (1999) (U.S.).
203.See Pelletier, supra note 188, citing Wis. Stat. Â§ 948.51 (1996) (U.S.).
204.Wis. Stat. Ann. Â§ 939.50 (Westlaw through 2009 Act 406) (U.S.).
205.Pelletier, supra note 188 at 381.
206.Id.
208.Id.
209.Id.
210.TSN, 21 April 1992 (People v. Dizon , Crim. Case No. C-38340), pp. 68-72, 90-91, 100-102,
108-109, 127-134.
211.TSN, 26 May 1992 (People v. Dizon, Crim. Case No. C-38340), pp. 29-32, 43.
212.TSN, 3 June 1992 (People v. Dizon, Crim. Case No. C-38340), pp. 24-28.
213.People's Comment ( Dizon v. People , G.R. No. 155101), p. 131; rollo, p. 626; People's
Comment (Villareal v. People, G.R. No. 151258), p. 120-3; rollo, pp. 727-730.
214.People's Comment ( Dizon v. People , G.R. No. 155101), pp. 130-131; rollo, pp. 625-626;
People's Comment (Villareal v. People, G.R. No. 151258), pp. 120-123; rollo, pp. 727-730.
215.RTC Decision [Crim. Case No. C-38340(91)], pp. 18-35, supra note 9; rollo, pp. 127-144.

216.People's Comment ( Dizon v. People , G.R. No. 155101), pp. 130-131; rollo, pp. 625-626;
People's Comment (Villareal v. People, G.R. No. 151258), pp. 120-123; rollo, pp. 727-730.
217.Senate TSP No. 51 (17 November 1992) 9th Congress, 1st Regular Sess., pp. 12-13.
218.TSN, 21 April 1992 (People v. Dizon , Crim. Case No. C-38340), pp. 68-72, 90-91, 100-102,
108-109, 127-134; see TSN, 26 May 1992 (People v. Dizon , Crim. Case No. C-38340), pp.
29-32, 43; and TSN, 3 June 1992 (People v. Dizon, Crim. Case No. C-38340), pp. 24-28.
220.Dado v. People, supra note 125.
222.The aforementioned articles refer to the Revised Penal Code provisions on Physical
Injuries. These are the following: (a) Art. 262 — Mutilation; (b) Art. 263 — Serious
Physical Injuries; (c) Art. 264 — Administering Injurious Substances or Beverages; (d) Art.
265 — Less Serious Physical Injuries; and, (e) Art. 266 — Slight Physical Injuries and
Maltreatment.
223.Cf. United States v. Ah Chong , 15 Phil. 488 (1910); and Calimutan v. People , 517 Phil. 272
(2006).
224.Cf. Calimutan v. People , supra, citing People v. Carmen , 407 Phil. 564 (2001); People v.
Nocum, 77 Phil. 1018 (1947); People v. Sara , 55 Phil 939 (1931); and People v. Ramirez ,
48 Phil. 204 (1925).
225.176 Phil. 20 (1978).
226.People v. Carmen, supra note 224.

227.People v. Regato, supra note 118.
228.Id.
229.Cf. People v. Penesa, supra note 94.
232.RTC Decision [Crim. Case No. C-38340(91)], p. 38, supra note 9; rollo, p. 147; TSN, 16 July
1992 (People v. Dizon, Crim. Case No. C-38340), p. 108.
1992 (People v. Dizon, Crim. Case No. C-38340), p. 109.
237.Senate TSP No. 62, supra note 4 at 13-15.
1992 (People v. Dizon, Crim. Case No. C-38340), pp. 108-109.
240.Vedaña v. Valencia, 356 Phil. 317, 332 (1998).
241.Caminos v. People , 587 SCRA 348 (2009) citing LUIS B. REYES, THE REVISED PENAL
CODE: CRIMINAL LAW — BOOK ONE 995 (15th ed. 2001); People v. Vistan , 42 Phil. 107
(1921), citing U.S. vs. Gomez, G.R. No. 14068, 17 January 1919 (unreported); U.S. v.
Manabat, 28 Phil. 560 (1914).
242.People v. Vistan, supra, citing U.S. vs. Gomez, supra.
243.Id.
244.Id.
245.Gaid v. People, G.R. No. 171636, 7 April 2009, 584 SCRA 489; Gan v. Court of Appeals , 247-
A Phil. 460 (1988).
246.Gaid v. People, supra; Gan v. Court of Appeals, supra.
247.Gaid v. People , supra; People v. Vistan , supra note 241, citing U.S. vs. Gomez, supra note
241.
248.Id.
249.Id.
250.See Gaid v. People, supra note 245, at 503 (Velasco, J., dissenting).
251.Id.
253.Id.
254.Id. at 36; rollo, p. 145.
255.Id.; TSN, 24 June 1992 (People v. Dizon, Crim. Case No. C-38340), pp. 52-67.
257.Id.; TSN, 24 June 1992 (People v. Dizon, Crim. Case No. C-38340), pp. 68-69.
258.RTC Decision [Crim. Case No. C-38340(91)], p. 37, supra note 9; rollo, p. 146; TSN, 24 June
1992 (People v. Dizon, Crim. Case No. C-38340), pp. 70-71.
260.TSN, 24 June 1992 (People v. Dizon, Crim. Case No.C-38340), p. 50.
262.Id. at 23; rollo, p. 132.
263.Id. at 25; rollo, p. 134.
264.Id. at 26; rollo, p. 135.
265.TSN, 21 April 1992 (People v. Dizon, Crim. Case No.C-38340), pp. 175-176.
267.TSN, 16 July 1992 (People v. Dizon, Crim. Case No.C-38340), pp. 92-93.

268.TSN, 21 April 1992 (People v. Dizon, Crim. Case No.C-38340), pp. 110-111.
269.Ballou v. Sigma Nu General Fraternity , 291 S.C. 140, 352 S.E.2d 488 (S.C. App. 1986) (U.S.)
citing Easler v. Hejaz Temple of Greenville , 285 S.C. 348, 329 S.E.2d 753 (S.C. 1985)
(U.S.).
271.Id. at 27; rollo, p. 136.
272.Republic Act No. 8049 (1995), Sec. 4 (1), otherwise known as the Anti-Hazing Law.
274.Briñas v. People , 211 Phil. 37 (1983); see also People v. Yanson , G.R. No. 179195, 3
October 2011, citing People v. Del Rosario, G.R. No. 189580, 9 February 2011.
275.People v. Mercado, G.R. No. 189847, 30 May 2011 [citing People v. Flores, G.R. No. 188315,
25 August 2010; People v. Lindo , G.R. No. 189818, 9 August 2010; People v. Ogan , G.R.
No. 186461, 5 July 2010; and People v. Cadap, G.R. No. 190633, 5 July 2010].
276.Seguritan v. People, G.R. No. 172896, 19 April 2010, 618 SCRA 406.
277.People's Consolidated Memoranda ( Dizon v. People , G.R. No. 155101), p. 144; rollo, p.
1709.
278.Heirs of Ochoa v. G & S Transport Corporation , G.R. No. 170071, 9 March 2011, citing
Victory Liner Inc. v. Gammad, 486 Phil. 574, 592-593 (2004).
279.Id.
280.Eastern Shipping Lines, Inc. vs. Court of Appeals, G.R. No. 97412, 17 July 1994, 234 SCRA
78.

Petitioner Vs Vs Respondent: Second Division

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SECOND DIVISION

[G.R. No. 171636. April 7, 2009.]

NORMAN A. GAID , petitioner, vs . PEOPLE OF THE PHILIPPINES ,

Petitioner entered a not guilty plea. Thereafter, trial ensued.

(to the witness)

A Yes, he was running slowly. 3 1

The slow pace of the jeepney was seconded by Mellalos:

However, the Court of Appeals found petitioner guilty of simple negligence

5. Vide t.s.n., Records, p. 209.

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

[G.R. No. 161803. February 4, 2008.]

DY TEBAN TRADING, INC. , petitioner, vs . JOSE CHING AND/OR

a) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga pay,

b) That all money claims of plaintiff Rogelio C. Ortiz are dismissed;

d) That the counterclaim of all the defendants is dismissed; and

xxx xxx xxx

xxx xxx xxx

However, defendant Jose Ching should be absolved of any liability as there

Private respondents appealed to the CA.

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

xxx xxx xxx

Baliwag's argument that the kerosene lamp or torch does not

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CD Technologies Asia, Inc. © 2018 cdasiaonline.com

1. Rollo, pp. 39-50-A.

14. Rollo, pp. 48-50.

[G.R. No. 13505. February 4, 1919.]

GEO. W. DAYWALT , plaintiff-appellant, vs . LA CORPORACION DE LOS

C.C. Cohn and Thos. D. Aitken, for appellant.

1.CONTRACTS; DAMAGES FOR BREACH; LIABILITY OF THIRD PARTY. —

In the year 1902, Teodorica Endencia, an unmarried woman, resident in the

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

[G.R. No. L-12219. March 15, 1918.]

AMADO PICART , plaintiff-appellant, vs . FRANK SMITH, jr. , defendant-

Alejo Mabanag for appellant.

1. NEGLIGENCE; CRITERION FOR DETERMINING EXISTENCE OF NEGLIGENCE. —

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

[G.R. No. 174161. February 18, 2015.]

R TRANSPORT CORPORATION , petitioner, vs . LUISITO G. YU ,

1. Actual damages in the amount of Php78,357.00 subject to interest at the

3. Moral damages in the amount of P150,000.00;

4. Exemplary damages in the amount of P20,000.00;

5. Attorney's fees in the amount of P10,000.00; and

THE COURT OF APPEALS ERRED IN AFFIRMING THE RULING OF THE

The right to be indemni ed being recognized, recovery by the registered

9. Rollo, pp. 32-33.

xxx xxx xxx

21. 105 Phil. 949 (1959).

29. Rollo, p. 29.

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[G.R. No. L-40570. January 30, 1976.]

TEODORO C. UMALI , petitioner, vs. HON. ANGEL BACANI, in his capacity

Julian M. Armas for the petitioner.

1. DAMAGES; QUASI-DELICT; NEGLIGENCE. — Art. 2179 of the Civil Code

"Wherefore, the Court hereby renders judgment in favor of the

A careful examination of the record convinces Us that a series of negligence on

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

[G.R. No. 161803. February 4, 2008.]

DY TEBAN TRADING, INC. , petitioner, vs . JOSE CHING AND/OR

a) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga pay,

b) That all money claims of plaintiff Rogelio C. Ortiz are dismissed;

d) That the counterclaim of all the defendants is dismissed; and

xxx xxx xxx